Monday, March 28, 2005

Four-Year Terms for President?

According to this story and this story, the idea of amending the Constitution so that the President can serve for up to two four-year terms (as opposed to the current system in which the President can serve only for a single five-year term) is picking up steam.

Tuesday, March 22, 2005

Impeachment Article

The latest draft of my article on the Roh impeachment, "Law, Politics, and Impeachment: The Impeachment of Roh Moo-hyun from a Comparative Constitutional Perspective," which will be published by the American Journal of Comparative Law later this year, is now available for download here. Here is the abstract:

In March 2004, the National Assembly of South Korea impeached President Roh Moo-hyun and brought about an immediate suspension of Roh’s presidency. Two months later, the Constitutional Court of Korea restored the status quo by dismissing the impeachment and reinstating the President. This episode marks the first time in the history of modern constitutionalism that a president impeached by a legislative body has been reinstated by a judicial body. This Article focuses on one slice of this remarkable turn of events: its constitutional dimension from the perspective of comparative constitutional law. After explaining the Constitutional Court’s decision, this Article discusses the significance of the ruling for three broad questions of comparative constitutional law: judicial decisionmaking as a distinct form of constitutional interpretation; the dual nature – legal and political – of the impeachment process and the proper role of the courts in it; and historical, political, and institutional factors that lead to the doctrine of judicial supremacy. Comparisons to the U.S. model of presidential impeachment are made throughout the Article.

Comments are welcome.

Friday, March 18, 2005

First Class Action Lawsuit in Korea

The Korea Times reports here on the upcoming lawsuit. It sounds like a securities case. BusinessWeek profiled the plaintiffs' lawyer here two years ago.

Wednesday, March 16, 2005

Jury System in Korea

South Korea is experimenting with the jury system. According to this story, juries will start participating in certain types of criminal cases on a trial basis starting 2007. The system will be reviewed in 2012, at which point the Supreme Court will consider instituting it permanently. During the test period, juries' decisions will not be binding and will only be advisory.

(Some background: The Korean Constitution contains a number of procedural protections for criminal defendants such as due process, the right to counsel, the right not to incriminate oneself, and prohibitions of warrantless searches or arrests (with some exceptions) and of double jeopardy and ex post facto prosecutions. There is even an explicit prohibition of "unfavorable treatment on account of an act not of his own doing but committed by a relative." The Constitution also has a general guarantee of "human dignity.")

Given the current controversy over the precise contours of the right to jury trial in the U.S., it is interesting that the jury system in Korea is being promoted as a democratic measure to serve as a check on arbitrary decisionmaking by judges and to build public confidence in the criminal justice system and the rule of law. I was in Korea during the O.J. Simpson trial, and I remember encountering some skepticism about the jury system among some Koreans. And I know that a large segment of the population there remains skeptical. In any event, this is something to be watched closely in the next several years.

But for now, a question: Is there a constitutional issue here? Article 27 of the Constitution provides, "All citizens shall have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act." Could someone bring a challenge against the jury system on the basis that he or she has a right to be tried by a judge under this provision? The current arrangement appears to be partly designed to avoid this problem; a jury can participate in a particular case only with the defendant's consent. In other words, if what the Korean government does is simply add an option to be tried by a jury, as opposed to take away the option of being tried by a judge, then there may be no constitutional problem.

Tuesday, March 15, 2005

No Government Assistance for Criminal Defectors?

Chosun reports that the South Korean government has a plan not to give financial and employment assistance to defectors from North Korea if they carry criminal records. Marmot derides this plan here, which is where I first read about this. According to the story, "North Koreans with inappropriate backgrounds including terrorists, drug dealers and those carrying criminal records involving rape and murder" will not be eligible for governmental assistance to start new lives in South Korea. The story further reports that "the government will dispatch investigators to China and other third countries that North Korean defectors make stopover before settling in South Korea and screen them in advance and examine their status."

I am interested in finding more about this plan, which I find very puzzling for a number of reasons. Do criminal records from the defectors' days in North Korea count? And how does the government plan to find such records? Given that South Korea has no reason to trust North Korea's legal system and its commitment to the rule of law values (unless the South Korean government knows something I don't) - e.g., both North Korea's substantive criminal law and procedural protections, the very idea of "criminal background" seems absurd to me when it is applied to defectors from North Korea. Perhaps the government is referring only to criminal activities undertaken by defectors in China or other countries? In that case, they may be serving time in those countries anyway (if not sent back to North Korea altogether), so I am not even sure how many people are supposed to be affected by this. Also, is the idea to bring them into South Korea but give them no financial assistance? Leaving them with no legitimate means of survival seems to me to be an excellent way to encourage criminal activities. Or is the idea to screen them out so they do not enter South Korea in the first place? Plus, if some of these people are indeed "terrorists," financial and employment assistance should be the least of South Korea's worries about them.

Many questions, and I would like to find out more. Chosun must be leaving a lot of stuff out because it just doesn't make a lot of sense.