hankyoreh

Dec. 19.

A debate is raging over whether the Constitutional Court’s ruling to disband to the Unified Progressive Party (UPP) conforms to the Venice Commission’s five main standards for party disbandment.

The commission, a council for constitutional courts around the world, has already issued a formal request for the South Korean court to submit the text of its ruling. The commission‘s standards for disbandment, which is seen as a measure limiting basic political rights in terms of the freedom to engage in party activity, are known to be very strict.

The Venice Commission’s standards are summarized in the Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures adopted in December 1999. First, dissolutions cannot be based on domestic law alone, but must also meet international standards. Second, dissolutions are only allowed in extremely exceptional circumstances “of parties which advocate the use of violence or use violence as a political means to overthrow the democratic constitutional order.” Third, dissolution cannot be based on the activities of individual party members. Fourth, dissolution measures should be governed by the principle of proportionality and used only as a last resort. Fifth, dissolutions must be made through judicial decision based on adequate evidence of a real danger.

In the case of the UPP ruling, the biggest controversy is over whether the party advocated or used violence to overthrow the democratic constitutional order according to the second standard. The Constitutional Court ruled that the so-called “Revolutionary Prganization [RO]” led by former UPP lawmaker Lee Seok-ki advocated the use of violence with an alleged conspiracy to seize weapons and strike major national facilities. The UPP has noted that Lee’s trial of charges of conspiracy to commit insurrection is not yet over, and disputes the claims about the use of violence to overthrow the state. In particular, it noted that the court for Lee’s second trial acquitted him of the conspiracy charges, which were the chief basis for the disbandment hearing request.

Even if the RO’s discussions are judged to constitute advocating violence, the two sides’s arguements also conflict over whether it is justifiable to disband a party with over 100,000 members for the actions of a small number of them. This issue connects with the third standard, stating that “[a] political party as a whole can not be held responsible for the individual behaviour of its members not authorised by the party within the framework of political/public and party activities.” The Constitutional Court used this as the main basis for its ruling, noting that the organizers and attendees at the organization‘s meeting were “leading forces” in the UPP. The UPP argues that the concept of “leading forces” is excessively arbitrary and cannot be used as a basis for legal decisions.

Another possible source of dispute surrounds the fourth standard on the principle of proportionality. Even if the party goals and activities are, as the court claimed, as a threat to the basic democratic order, questions remain as to whether that threat was real and specific enough to require the “last resort” of dissolution.

“Even if we assume the actions of the participants at the RO meeting did constitute conspiracy and instigation to perpetrate disorder with the goal of subverting the constitution, as the lower courts have ruled, it would suffice to take criminal action against the individual members as long as it wasn’t an organized decision by the Unified Progressive Party as a whole,” said Pai Chai University law professor Kim Jong-seo.

"The question of whether the purposes and activities of pro-North Korea elements inside the UPP such as the RO group presented a realistic threat to the system is an important litmus test for assessing whether the court‘s decision was based on ”adequate evidence.“

”The important question is whether there was a realistic chance of this party coming to power and overturning the democratic order. According to the recent election results, there was an extremely small chance of the UPP seizing power. They were not even in a position to be represented in the cabinet. The biggest problem with the decision of the Constitutional Court is that it exaggerated this threat,“ said Kim Seon-taek, professor at the Korea University Law School.

The Venice Commission, a constitutional advisory body established under the Council of Europe in 1990, provides various countries with constitutional support in order to promote democracy, human rights, and the rule of law. It also monitors elections and popular referendums and prepares international research reports.

Thus far, the commission has provided constitutional advice to 50 countries on 500 occasions, and 59 countries are members in the body. South Korea became a member in 2006.

The commission’s assessment of the Constitutional Court’s ruling would not be legally binding. However, given the commission’s high international reputation, it is only natural that the global view of the standing and status of the South Korean Constitutional Court would be shaped by how the commission assesses the decision.

By Lee Se-young and Lee You Ju-hyun, staff reporters

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