Military Government under President Chun Doohwan (1979 – 1988)
(1) Constitution of 1980
Major General Chun Doohwan, who rose to prominence after the Incident of December 12, 1979, declared martial law on May 17 of the following year when student anti-government protests began to spread throughout the country. To oppress the democratization movement that was on the rise in Gwangju, Chun organized a referendum on the amendment of the Constitution, and presided over the enactment of a new Constitution supporting the indirect election of the President to a single term of seven years. Chun then abolished the National Council for Unification and organized an electorate for the presidential election to be held in October 1980. He also introduced additional conditions under which the President could declare national emergency and dissolve the national legislature, and enforced recognition of the President’s superiority in the legislature. The amended Constitution allowed the President to appoint the Chief Justice to the Supreme Court, subject to the National Assembly’s approval, and associate justices to the Supreme Court upon nomination by the Chief Justice. All other judges were to be appointed by the Chief Justice of the Supreme Court. The Constitution also repealed the provision on the dismissal of judges for disciplinary purposes.
(2) Judiciary-Administration Relations
1) Independence of judges: Unfair appointments and the impeachment of the Chief Justice of the Supreme Court
Seo Taeyeong, then a judge at the Seoul Civil District Court, was forcibly transferred to the Ulsan District Court shortly after he published an op-ed column, entitled “Worries over Recent Court Appointments,” in a newspaper for legal practitioners. The New Unified Democratic Party then motioned in October 1985 to impeach Yu Taeheung, the then Chief Justice of the Supreme Court, for failing to fulfill his constitutional duty to protect the independence of judges through fair appointments. The bill for impeachment, however, was rejected in a plenary session of the National Assembly (Office of Court Administration, 1995, 864-866).
2) Independence of trials
(i) Supreme Court’s ruling on Park Chunghee’s assassination
As the self-appointed head of the Joint Investigation Headquarters of the Martial Law Command, Major General Chun brought Kim Jaegyu and seven other individuals involved in the assassination of President Park Chunghee to the Court Martial on October 26, 1979 upon charges of national treason and murder. The attorneys for the defendants petitioned the Supreme Court to settle the question of the forum first, arguing that the Court Martial lacked jurisdiction over the case. Their logic was that the martial law declared on October 27, 1979, for no reason other than the President’s death, was fundamentally invalid, and that the Court Martial, assembled in its aftermath, should not try a crime committed before the martial law was declared. The Supreme Court, however, rejected the petition, arguing that it was not for the Court to decide whether or not the declaration of martial law was valid, and that Article 16 of the Korean Martial Law authorized the Court Martial to decide cases in the place of ordinary courts (December 7, 1979, 79-Cho-70, 79-Cho-72, and 79-Cho-73).29
(ii) National security case: Charges of conspiracy against Kim Daejung and the Sammin ideology
In 1981, the Supreme Court ruled that the Citizens Council for the Democratic Reunification of Korea was an anti-state organization taking its orders from, and formed with financial support of, the North Korean regime and the Federation of Koreans in Japan (FKJ) for the purposes of denouncing and causing disorder to South Korea, and sentenced Kim Daejung, one of the defendants, to death on charges of conspiracy and violation of the National Security Act (January 23, 1981, 80-Do-2756).
In 1985, the Prosecutors’ Office held a press conference in which it denounced the Federation of National University Students organization for motivating and mobilizing illegal and violent student protests, which were on the rise in Korea at the time. The prosecution asserted that the Sammin
ideology, which emphasized national reunification, liberation and democracy, was tailored to the revolutionary strategy and ambition of the North Korean regime, and that the Sammin
committees at universities were fundamentally communist incubators in South Korea. In October 1986, Yu Seonghwan, a member of the National Assembly, created a firestorm of controversy when he argued on the floor that the basic principle of governance should be national reunification, not anti-communism. Yu also published op-ed columns in newspapers, arguing that the investigative authorities had distorted the Sammin
ideology of nationalism, anti-dictatorship, and preservation of the livelihood of the people into communism for the purposes of indictment and persecution at the cost of the truth (Office of Court Administration, 1995, 854-864 and 1245-1246).
(iii) Charges of communism and investigators’ brutality: The cases of Kwon Insuk and Park Jongcheol
As the legitimacy of the Chun Doohwan administration continued to be questioned, a massive protest demanding democracy broke out in Gwangju (on May 18, 1980), in which students took to the streets challenging the authority of the Chun government and the legitimacy of U.S. involvement in quelling democratization protesters. The police and prosecutors resorted to tactics of torture and terror to get a grip on the situation, and the cases of torture victims Kwon Insuk and Park Jongcheol illustrate the brutal measures taken by the state. In the Kwon Insuk case,30
the Supreme Court quashed the original ruling on Mun Guidong (January 29, 1988, 86-Mo-58), in a desperate attempt to restore at least a semblance of legitimacy and authority to the judiciary which was embroiled in a severe crisis of confidence.
In the Park Jongcheol case,31
the Seoul District Criminal Court sentenced the chief inspector and the sergeant that had tortured Park to 15 years in prison (July 4, 1987, 87-Gohab-109,639). The death of Lee Hanyeol, a student protester hit by tear gas on June 9, 1987, enflamed protests nationwide, ultimately culminating in the end of the military dictatorship (Office of Court Administration, 1995, 872-873).
3) Constitutional review
Even during the Chun administration, the courts were required to relay cases contesting the constitutionality of laws and other government actions to the Constitutional Committee for review and decision. Upon request from the judge presiding over a given case or from the parties of that case, cases of constitutionality had to first garner consensus from the Supreme Court before reaching the Constitutional Committee. The Constitution, however, included supplementary provisions which banned objections or appeals related to the actions of the National Security Legislation Committee or related courts in the areas of legislation, budget decisions, etc. The petitions from lower courts for constitutional review were thus subjected to the prior restraint of the Supreme Court. The Constitutional Committee therefore ended up reviewing, impeaching, and deciding on not a single case of constitutionality (Constitutional Court, 1998, 67).
The Supreme Court ruled that Article 23.2 of the Martial Law32
did not violate the Constitution (May 28, 1985, 81-Do-1045). Four of the 13 justices on the bench, however, held a dissenting opinion, arguing that the said provision fundamentally violated individuals’ constitutional right not to be tried by a Court Martial. The dissenting justices emphasized that the excessive self-restraint and passivity on the part of the judiciary threatened “to turn the authority of judicial review, protected by the Constitution, into a mere slogan and the entire judiciary into an instrument for rationalizing and maintaining the status quo
.” Justice Lee Ilgyu lamented that the majority of the justices remained in “deep slumber and complacent in the face of their constitutional obtuseness” (Office of Court Administration, 1995, 876-878).
The Court Martial sentenced Kim Jaegyu and six other defendants to death, and Yu Seoksul to three years in prison. Upon appeal, the sentence for only Kim Gyewon was lowered to life in prison. All the defendants lodged appeals with the Supreme Court, but the appeals were struck down in a plenary session. Six of the Supreme Court justices, however, held minority opinions, discussing such questions as whether the defendants were really intent on committing treason against the established constitutional order, and whether there really was a “consensus of multiple parties” that the definition of national treason required (May 20, 1980, 80-Do-306).
In June 1986, a young woman named Kwon Insuk, then a student at Seoul National University, was brought into the Bucheon Police Department for interrogation over forging her ID and seeking unlawful employment. Sergeant Mun Guidong tortured and sexually assaulted Kwon, demanding that she give the names and locations of the parties involved in the incident that occurred in Incheon on May 3, 1986. The Incheon District Prosecutor decided not to press charges against Mun. Later Kwon brought her case to the Seoul High Court, but the court denied her petition, arguing that Sergeant Mun committed the crimes out of excessive zeal for duty, had admitted to his guilt, and had already been removed from his post (October 31, 1986, 86-Cho-115,116). The court instead sentenced Kwon to 18 months in prison (December 4, 1986, 86-Gohab-375).
Chief Inspector Jo Hangyeong and Sergeant Kang Jingyu, of the Anti-communism Department at the National Police Headquarters, were indicted at the Seoul District Criminal Court on charges of violating the Act on the Additional Punishments for Special Crimes in January 1987. Jo and Kang had arrested Park Jongcheol, then a student at Seoul National University, and interrogated him on charges of mobilizing protests, using waterboarding and other forms of torture that ultimately led to Park’s death.
The article held that court cases that had been left to the Court Martial under martial law were to be returned to general courts upon the lifting of martial law, but that the President may extend the jurisdiction of the Court Martial by one month if he sees fit to do so.
Korea Institute of Public Administration. 2008. Korean Public Administration, 1948-2008, Edited by Korea Institute of Public Administration. Pajubookcity: Bobmunsa.