Trial of Democracy under the Military Government: 1961-1979
1. May 16 Military Coup d’état and the Park Chunghee Administration (1961-1972)
(1) Constitution of 1962
The military government that arose out of the military coup of May 16, 1961 organized a constitutional referendum in December 1962, which led to the election of Park Chunghee, the military officer who had led the coup, as the new President in August 1963. The Constitution of 1962 adopted a unicameral national legislature and a presidential system much like the first Constitution of Korea enacted in 1948. In 1969, the Constitution was amended once again to allow President Park to serve two more terms, thus paving the way for his prolonged one-man rule.
(2) Judiciary-Administration Relationship
1) Independence of judges: Controversy over the appointment of a new Chief Justice
The amended Constitution of 1962 abolished the election of justices to the Supreme Court, and created, instead, the Judicial Nomination Committee (JNC).[1] Under the new system, the President appointed the Chief Justice of the Supreme Court with the approval of the JNC, and the Chief Justice appointed judges to the rest of the courts in the judiciary also with the approval of the JNC. The JNC proposed the reappointment of the third Chief Justice, but the Korean Bar Association (KBA) objected to the nomination, arguing his unfitness to serve another term due to his comprising the Court’s authority during his first term. Others in the National Assembly were similarly opposed, citing that a man who had served as the head of the Supreme Court during the military coup should not be allowed to serve another term. Nevertheless, the man was reappointed as the fourth Chief Justice of the Supreme Court.
2) Independence of trials
(i) Siege of the court by armed soldiers
Judge Yang Heon, then serving on the Seoul District Criminal Court, dismissed the request for a warrant to arrest suspects associated with demonstrations protesting the Korea-Japan talk in 1964. On May 21, 1964, shortly after the decision, 13 soldiers armed with pistols and carbine rifles mounted military emergency vehicles and made their way to the Seoul District Criminal Court and to the personal residence of Judge Yang in an ostentatious protest against Yang’s decision not to arrest the demonstrators. The KBA publicly denounced the incident as a grave threat to the foundation of democratic order, and released a statement exhorting that the independence of the judiciary be respected and upheld.
(ii) First People’s Revolutionary Party case and the East Berlin incident
The participants in the May 16 coup justified their actions with a call for anti-communism. The military government thus quickly enacted the Anti-Communist Act (ACA) on July 3, 1961. Important court cases from the era involving the ACA include the People’s Revolutionary Party case of 1964[2] and the East Berlin incident of 1967.[3] When the court acquitted some of the defendants in the East Berlin case due to insufficient evidence and other reasons, the Prosecutors’ Office openly criticized the ruling as presenting major difficulties to the project of rooting out violators of national security and anti-espionage laws, and distributed leaflets, encouraging the public to join in the renunciation of “communist sympathizers” among the ranks of judges (OCA, 1995, 463-466, 643).
(iii) Judicial crisis of 1971
In July 1971, the Seoul District Prosecutor’s Office requested a warrant to arrest Chief Judge Lee Beomyeol of the Seoul District Criminal Court on bribery charges.[4] The 37 other judges making up the Seoul District Criminal Court criticized the action, arguing that the case against Lee was not actually about corruption, but was a retaliatory measure against the recent ruling of the Court in favor of the defendants.[5] In addition to these 37 judges who collectively resigned from their posts, the 36 judges of the Seoul District Civil Court also submitted their resignations at once, releasing a public statement advocating the independence of the judiciary. [6]
3) Constitutional review
The Constitution of 1962 abolished the Constitutional Court, and transferred the power to review the constitutionality of legislation to the Supreme Court.
(i) Compensations for the expropriation of personal estates
The Supreme Court found that Presidential Decree 1914, which remained effective from 1965 to 1974 and ruled that the amounts of compensations for expropriated personal estates be determined within the parameters of given annual budgets, violated the constitutional requirement, outlined in Article 20.3, that fair and just compensations be provided for personal properties seized, expropriated, or restricted by the government (November 12, 1967, 67-Da-1334). The Court, moreover, asserted the compensation standards provided in Article 21 of the Expropriation Act[7] as merely referential in nature, in that the Expropriation Compensation Review Committee could reference these standards in determining the amounts of compensations to be paid, but that the standards did not and should not limit the Court’s ability and power to determine the objective values of expropriated properties (March 24, 1970, 67-Da-1561). These decisions had a significant impact on national fiscal policy (OCA, 1995, 469 and 475-476).
(ii) National Compensation Act and Court Organization Act
The Seoul District Civil Court ruled that Article 3 of the National Compensation Act, which defined the maximum limit on compensations to be paid by the government to individuals, as unconstitutional as it unfairly sacrificed individual rights for the good of society (January 23, 1968, 67-Ga-9292). The Supreme Court also ruled that Article 3 of the National Compensation Act did not and should not bind the courts in making decisions (January 29, 1970, 69-Da-1206). Furthermore, the Supreme Court found that the proviso in Article 59.1 of the Court Organization Act[8] as well as the proviso in Article 2.1 of the National Compensation Act[9] contradicted the Constitution (June 22, 1971, 70-Da-1010).[10]
[1] The JNC was comprised of four judges, two lawyers, one professor of law appointed by the President, the Minister of Justice, and the Public Prosecutor General.
[2] The Korea Central Intelligence Agency (KCIA) publicly announced in August 1964 that Do Yejong, Yang Chunwoo, and others who had taken instructions from the North Korean regime were appealing to progressive intellectuals, professors, journalists, university students, and the like in South Korea to protest against the South Korean government, mobilizing them into a huge communist organization named the People’s Revolutionary Party. The Public Security Department at the Seoul District Prosecutor’s Office had in fact arrested 26 individuals for allegedly violating the National Security Act who turned out to have formed an underground association known as the People’s Revolutionary Party. The 26 members were not initially indicted, however, since the anti-state elements of the organization could not be proven and there was insufficient evidence to prove that its members had acted on orders from North Korea. Nonetheless, the leadership of the District Prosecutor’s Office eventually went ahead with arresting and indicting these individuals, insisting that their “Manifesto for Peaceful Reunification” conformed to the North Korean Communist Party’s “Armed and Peaceful Reunification Policy.” On January 20, 1964, the Seoul District Criminal Court sentenced Do and Yang to three and two years in prison, respectively, on the ground that they violated the ACA. Their supporters and associates, however, were all acquitted. On appeal, the Seoul High Court sentenced 11 of the acquitted members to one year in prison or two years of probation on the charge that they had helped to operate an organization that could have possibly abetted anti-state activities. The Supreme Court dismissed the second appeal on September 21, 1969 (OCA, 1995, 635).
[3] In July 1967, the KCIA handed over 57 affiliates of the so-called East Berlin Incident to the Prosecutors’ Office. The incident was centered on the government’s claim that Korean students studying in West Germany and France were in frequent contact with North Korean operators in East Berlin, and were also actively recruiting other Korean students to their cause and providing information to North Korean operators. The Supreme Court quashed the prosecution’s charges against some of the defendants, and remanded the case to the Seoul High Court. Regarding Jeong Haryong, a university lecturer who had been sentenced to death, and Cho Yeongsu, who had been sentenced to life in prison, the Supreme Court reasoned that frequent contact between these friends did not amount to the crime of unapproved assembly as stated in the ACA, and that there was no evidence that the two men’s association benefitted the North Korean regime in any way. The Court, moreover, found that the sentencing of composer Yun Yisang to 15 years in prison and of Lim Seokhun, still a student, to death, were disproportionate (July 3, 1968, 68-Do-754; OCA, 1995, 463-464).
[4] The charge was that Judge Lee had received gifts, including air flight tickets and alcohol, amounting to KRW 97,000, from those supporting the defendants in the ACA cases. The Court dismissed the request for a warrant to arrest Judge Lee, citing that he posed no risk in terms of evidence tampering or flight. A second warrant request was also dismissed.
[5] In 1969, the Constitution was amended to allow President Park to serve three terms in total. When Park was reelected to the presidency in April 1971 under the new Constitution, 20 or so university students broke into the New Democratic Party (NDP)’s central office and demanded that the NDP members refuse to vote for the President. The Seoul District Criminal Court found the students not guilty, concluding that the somewhat raucous break-in staged by these students into a division of a major political party’s office neither carried with it malignant intent or aggression toward the public, nor did it in itself cause a direct and manifest threat to the public (June 29, 1971, 71-Gohab-386,421,447). President Park was so riled up over the Court’s decision that he personally telephoned the Chief Justice of the Supreme Court to complain (OCA, 1995, 474 and 488).
[6] The statement listed “treating judges who begged to differ from the prosecution in cases involving alleged violations of the ACA or the National Security Act as pro-communists” as threatening and undermining judicial independence. The KBA followed suit by releasing its own resolution to uphold judicial independence; 150 judges resigned as a result. Thus, the Prime Minister and the Minister of Justice were forced to announce publicly that the National Assembly would guarantee the judiciary budget and see to it that no further challenges to the judicial authority would occur; they also finally revoked the decision to dismiss Judge Lee Beomyeol. The judges responded in kind by withdrawing their resignations.
[7] Article 21 of the Expropriation Act defined that the fee charged for use of an expropriated property be based on the tax assessment standard of the given fiscal year in which the property was used, and that the amounts of other compensations be based upon the tax assessment standard applicable at the time the property was returned to the original proprietor’s custody.
[8] On August 7, 1970, while waiting for the Supreme Court’s conclusive decision on the case of Article 2.1 of the National Compensation Act, which the Seoul District Court had already found unconstitutional, the National Assembly amended the Court Organization Act. The pre-amended Act required the attendance of at least two-thirds of Supreme Court justices and consent from the majority of the justices present to find a legislation unconstitutional. The Act was finally amended so that it required the presence of at least two-thirds of Supreme Court justices and the consent of two-thirds of the justices present to find a legislation unconstitutional (Article 59.1), citing that cases of constitutionality were too grave to be decided in so light a fashion.
[9] The article stated that soldiers and their families who had already been compensated by the government for the death or injury of soldiers during military operations or in other military settings (including bases, ships, and aircrafts) could not seek further remedies and compensations under either the National Compensation Act or the Civil Act.
[10] The Court found Article 2.1 of the National Compensation Act unconstitutional, reasoning that the purpose of government workers’ compensation was to uphold and further the project of social security, while the purpose of damages was to return on the damage caused by illegal or unauthorized actions (Constitutional Court, 1995, 50-54). Min Bokgi, the then Chief Justice of the Supreme Court, later conceded that President Park did take offence to the Court’s decision, and that the government exaggerated the negative impact the Court’s ruling exerted on the national treasury and the economic development policy. According to Min, what the Court decision ultimately achieved was the undermining of government authority (OCA, 1995, 468-472, and 488).
Source: Korea Institute of Public Administration. 2008. Korean Public Administration, 1948-2008, Edited by Korea Institute of Public Administration. Pajubookcity: Bobmunsa.
