hankyoreh

By Lee You-jin, staff reporter

Han Seung-heon, 80, a respected legal professional who served as chief of the Board of Audit and Inspection (BAI), cited the rule of law and legislative power in a direct rebuttal of the arguments of the ruling Saenuri Party (NFP), which is opposing the special Sewol Law sought by the families of Sewol victims.

Han gave a lecture at the First “Seonu” Forum for Sociology and the Humanities, which took place at Korea University on the afternoon of Aug. 26. “The ruling powers talk about the rule of law at every possible opportunity. However, the argument that it is only the public that must obey the law represents a misunderstanding or distortion of the rule of law,” Han said at the forum.

The event was organized by the Korea University Institute of Social Research, headed by Cho Dae-yeop, professor of sociology. The title of Han’s lecture was “The Rule of Law in Korea: Can We Leave It As Is?”

“In the modern age, the rule of law has been understood not as a means of maintaining top-down control, but rather a way of keeping a bottom-up check on power. The rule of law is a concept that guarantees not the interests or convenience of the rulers, but the rights of the people, those who are being ruled,” Han said.

The use of the term “rule of law” here is connected with the special Sewol Law that the bereaved families are calling for. This term has been used by some lawmakers from the ruling party who have argued that the special law weakens the judicial system and violates the National Assembly’s legislative power.

“Bearing in mind that the people rule in a democratic republic, the National Assembly needs to explain how it is an infringement of legislative power for the people to demand that a law be passed,” Han said in a separate interview with the Hankyoreh.

“If it is an infringement of the legislative power for the people - the rulers - to ask for a law to be passed, what exactly is the meaning of popular sovereignty or a democratic republic? Involving the bereaved families in the process of soliciting opinions through an independent commission is legal and appropriate,” Han said.

In other words, since under the rule of law the law must reflect and accept the will of the majority, it is absurd to argue that public demands for legislation are an infringement of legislative power. In fact, Han said emphatically, “it is lawmakers who are violating the rule of law and popular sovereignty when they reject the public basis of governance and the opinion of voters.”

Han returned again and again to the point that the rule of law must not be regarded as a means for politicians to rule. “Under a democratic system, the focus is on rulers obeying the law; under an oppressive system, the focus is on the ruled obeying the law,” he said.

Along with this, Han stressed the fact that positive law in South Korea has been criticized for having many problems with its creation, content, and execution and for doing little more than setting up unrealistic norms.

“Since the constitution was established in 1948, there have been nine revisions. At first, these revisions largely made the constitution worse by adding clauses aimed at prolonging the administration’s time in office. After that, revisions were made to limit basic rights in order to crush popular resistance to the government,” Han said.

During that time, according to Han, the rule of law did not break down because people lacked a law-abiding spirit, but rather because the ruling authorities were intentionally working to undermine it. The rule of law was explicitly violated when these authorities rammed through legislation; it was effectively disregarded when they limited the people’s rights and freedoms on the pretense of maintaining national security, preserving order, and providing for the public welfare.

The judicial branch, the last line of defense, must also bear a large amount of the blame for the incorrect understanding of the rule of law, Han added. “Except for during the tenure of Kim Byeong-no, the first chief justice of the Supreme Court, the South Korean judiciary has never been free from the influence and the interference of politicians,” he said.

“The ironic and shameful thing about the independence of the judiciary is that it was not achieved by the justices themselves, but rather by the so-called criminals that those justices had sent to prison. This independence was the fruit of their struggle and their suffering. The judiciary needs to eliminate the practice of giving special treatment to former judges who become lawyers. It also needs to stamp out not only outside influence but also inside influence including interference in the courthouse and political favors,” Han said.

Han added that in order to establish the rule of law, prosecutors need to maintain their autonomy and neutrality. In particular, they must not lose their objectivity in cases that are connected with the interests of the ruling party.

When asked about the current leader, President Park Geun-hye, Han said, “Leaders who scheme to become despots by pushing through their plans with no questions asked under the slogan of the rule of law will never prosper.”

“We shouldn’t expect reform to happen on its own. The people rule, and they need to develop their democratic ability and apply more pressure,” Han stressed.

Please direct questions or comments to [english@hani.co.kr]