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Posted : 2009-11-16 17:00
Updated : 2009-11-16 17:00

Court Decided the Case First

By Andy Jackson

``It is the merit of the common law that it decides the case first and determines the principle afterwards."

Those are the words a young American attorney (and later U.S. Supreme Court Justice), Oliver Wendell Holmes Jr., wrote in his first law review article in 1870.

Although Korea's Constitutional Court deals with constitutional rather than common law, it is worth remembering Holmes' adage when considering its Oct. 29 decision not to invalidate the media reform law that was passed in a contentious vote in July.

The court ruled that there were serious violations of procedure during the voting process for that bill. There will be a revote on the included violations which transgressed a rule against considering the same legislation twice during the same National Assembly session, and proxy voting (legislators must personally register votes from their desks).

The main reason the court refused to overturn the vote was that the violations it noted were not of national laws but rules for the internal governance of the National Assembly. For the court to intervene in an internal matter of the National Assembly would have been a breach of the separation of power between the branches of government.

Critics are right to point out that following proper procedure is as important, but it was not the court's place to impose its view of National Assembly procedures on the legislature.

The principle is more easily understood if you asked how people would feel if President Lee Myung-bak started dictating to the National Assembly how to conduct its business. The same principle of separation of power applies to the judiciary.

This is not the first case in which the Constitutional Court has ruled that other principles were more important than strict adherence to procedures or the rule of law. It is not even the most famous case. That distinction belongs to the 2004 impeachment of President Roh Moo-hyun.

In that case, the court ruled that President Roh had violated the law in three of the six charges against him and that two of those were violations against the Constitution.

Despite agreeing that Roh had twice broken the highest law of the land, the court ruled against the impeachment, stating that the charges were not ``grave violation(s) of law sufficient to justify the removal of the President from office."

In coming to their decision, the court ruled that ``the 'democratic legitimacy' delegated to the President by the national constituents through an election" outweighed the need to strictly adhere to the Constitution. In essence, the court said that in this case the principle of majority rule outweighed the need to maintain the rule of law.

The same need to balance competing principles should be applied in the case of the media law. If the court had believed that the breaking of National Assembly rules had violated the Constitutional order and in doing so violated the right of the people to speak through their elected representatives, then there would have been sufficient cause to overturn the media law.

To see why the revote and proxy votes that caused the media law to pass were not sufficient to warrant its overturn, we have to recall the circumstances in which the votes took place. Even before voting began, members of the Democratic and Democratic Labor parties took positions in the assembly's main chamber to physically prevent the vote from taking place. The irregularities in voting procedures took place during the ensuing scuffles as supporters of the bill tried to place their votes despite the opposition blockade.

Kicking the issue back to the National Assembly created a perfect test of whether the rules violations were a true violation of democratic principles. If the law had been passed against the will of the majority of members of the National Assembly, it would have been a relatively simple thing for them to vote for the law to be overturned.

However, the truth is that opponents of the media law did not have the votes to stop it last July and do not have the votes to force reconsideration of the law today.

Therein lies the rub. In refusing to overturn the law, the Constitutional Court essentially decided that, in the particular circumstances of this case, the principle of majority rule took precedence over the need to follow proper voting procedures in the face of physical violence.

If the court had overturned the media law, it would not have been upholding the rule of law; it would have been upholding the rule of the mob.

The People's Coalition for Media Reform Director Kim Young-ho, in responding to the court's ruling, gave perhaps the most unintentionally revealing statement I have seen on the issue: ``If we proceed to do things according to the Constitutional Court's decision, the ruling party will be able to pass any bad law they want in the future in the National Assembly."

Well … yes. Passing laws they want is what legislative majorities do.

The Constitutional Court seems to agree. I believe Oliver Wendell Holmes Jr. would have agreed as well.

Andy Jackson has taught courses on American government and has been writing on Korean politics and other issues for four years. He is the chairman of Republicans Abroad-Korea. He can be reached at andyinrok@lycos.com.

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