By: Steven Kim

Serious concerns have been raised about the erosion of democracy in Korea under two successive conservative governments and, in particular, the current Park Geun-hye administration, which has just been booted from office.

The critics have cited party infighting, history textbook controversy, Park’s uncommunicative leadership style, passage of an anti-terror law, a clampdown on street protest, government enforcement of the anti-defamation law and the National Security Law as examples of the democratic rollback, and even more ominously as undermining democracy itself.

While the critics’ arguments deserve careful hearing, they cannot always be taken at face value because they attempt to generalize about the nature of Korean democracy based on limited number of cases, and in doing so they do not take into account the broader developments in Korean democracy.

In addition, the arguments themselves are suspect. They do not always stand up to scrutiny because the examples they cite as proof of democratic backsliding are subject to different interpretations. In fact, one could use the same examples to argue that democracy is alive and well.

Lastly, historical perspective is needed to make a fair assessment of democracy, or at the least examining not just the two most recent conservative governments but both liberal and conservative ones since the democratic transition in 1987. While Korea’s democracy is a work-in-progress, as is the case for all democracies including the advanced ones, it remains fully consolidated and resilient.

Contrary to specific instances of democratic rollback claimed by the critics, the consolidation of democracy has been most noticeable in the institutionalization of political parties, strengthening the role of the Constitutional Court in establishing protection of civil liberties and rule of law, and a vibrant and independent media.

What began as regional parties with top-down structures centered on powerful, charismatic figures and no effective political programs have gradually transformed themselves into parties that approximate those found in advanced democracies. The parties select their leaders and presidential candidates through democratic procedures; aggregate the interests of their leaders and constituents and formulate them into common goals and policy proposals, which the winning candidates attempt to translate into governmental action upon assuming office; and are expanding and diversifying their electoral base in order to become catch-all, nation-wide parties.

These efforts to create a more democratic, stable, and coherent party system have strengthened the role of the legislature in shaping legislation. Controversial bills introduced in the legislature undergo close scrutiny as the ruling and opposition parties engage in intense debate reflecting their ideological differences and negotiations over the contours of the bill, while appealing to their party faithful and the public for support through use of the media. The intense partisan wrangling can lead to a stalemate or if under external pressure result in a compromise where each side can claim partial victory without losing face.

The legislative battles can be drawn out and even more contentious if the president and the leadership from the same party disagree over tactics and the content of the bill. The ruling party in the legislature is no longer a passive follower of the president from the same party, but is increasingly taking a more assertive, independent role in shaping legislation often driven by their own policy agenda and political interests.

The role of the legislature in shaping legislation, in turn, has strengthened the institutional system of checks and balances between the legislative and executive branches. The institutionalization of political parties, therefore, has strengthened democracy by making the government more responsive and accountable to the public.

Contrary to expectations that the Korean Constitutional Court would be a quiescent institution when it was created in 1988 shortly after the democratic transition, the court has made an important contribution to consolidating democracy by exercising the power of judicial review to protect civil liberties from government infringement and, more broadly, advancing the rule of law embodied in the constitution.

In particular, the court has played a crucial role in checking the powers of the government by protecting fundamental rights guaranteed in the constitution. It has consistently and firmly ruled in favor of greater constitutional protection of civil liberties such as freedom of expression and press from government infringement.

By exercising the power of judicial review, the Constitutional Court’s decisions have also strengthened democracy as a system based on rule of law and the system of checks and balances between the judiciary on the one hand and the legislative and the executive branches of the government on the other. Because the court has fulfilled its constitutional role by rendering decisions perceived to be neutral and legitimate, it has garnered widespread trust and respect from the Korean public.

Therefore, the court has fostered the conditiona in which democracy can thrive and mature.

In addition, the media has played an important role in strengthening democracy. With the transition to democracy in 1987, freedom of the press has allowed the media to enhance the accountability and responsiveness of the government by fulfilling its watchdog function.

The press is free to criticize the government and its policies and report on what were once regarded taboo issues such as North Korea, political elites, and the Korean military. It has also helped to enhance accountability by increasing investigative reporting of government incompetence and wrongdoing. In addition, the mainstream media has become more conscious of its responsibility to keep the public informed with fair and objective reporting, as well as enhance public understanding of pertinent issues by offering informed analysis.

The media, moreover, has enriched public debate and representation by providing different views across the broad political and ideological spectrum of Korean society. This function has been strengthened further by the growth of online media where even more diverse views can be found and which has superseded the mainstream media as a source of news and information for the younger generation.

While overlooking the broader democratic developments, the critics’ alarm over democratic backsliding has been largely focused on what they perceive are government attempts to suppress civil liberties by using highly suspect laws to crack down on political dissent, as well as to discourage diversity by limiting the public’s access to differing views. They claim the government is using the National Security Law (NSL) and the anti-defamation law to limit free speech.

Of the two, the NSL and, in particular, a section of the law named Article 7 that prohibits any expression deemed favorable to North Korea, has garnered the most criticism both domestically and from abroad for violating freedom of expression guaranteed in the constitution.

Ever since its enactment in 1948 to safeguard national security from the threat of subversion by North Korea, the NSL has been criticized by those who feared that the government would abuse the law to suppress political dissent or views deemed unfavorable to the regime in power. The fears proved to be justified as the authoritarian governments of Presidents Rhee Syng-man, Park Chung-hee and Chun Doo-whan took advantage of this law not only to stifle government criticism, but also eliminate their political opponents.

Strongly anti-communist and -North Korea, the authoritarian governments used Article 7 to imprison people for being acquainted with Marxism, writing about the North Korean system either from an academic or journalistic perspective, and expressing views shared by the North Korean regime such as criticizing South Korean capitalism or the ROK-U.S. alliance relationship.

The law, however, remained in force after the democratic transition because of the real and well-documented security threat from North Korea. Although the intent of the law was to prevent subversive activities endangering national security, law enforcement agencies and local courts continued to interpret Article 7 prohibiting activities deemed favorable to North Korea expansively by filing criminal charges against artists, publishers, and academics for supposedly pro-North Korean activities that could hardly be considered a threat to domestic security or treasonous in nature.

The controversy over of the National Security Law came to a head in 1990 when the Constitutional Court made a landmark ruling on its constitutionality. While the court condemned the abuse of the NSL for political reasons, it nevertheless argued that it was constitutional to the extent that it was strictly interpreted to sanction only those activities that clearly endangered “the integrity and the security of the nation and the basic order of free democracy.”

The court ruling was aimed at restricting the scope of activities that could fall under the purview of the NSL by introducing a “clear danger test.” The law could only be used to prosecute activities that posed substantive danger and that merely sympathizing or encouraging activities deemed favorable to North Korea would not be sufficient grounds for prosecution.

But, given the potential abuse of the law by the government, the decision led to the legislature amending the law in 1991 to restrict the arbitrary use of the provision. The law was revised to apply only where the person charged had knowledge that his activities might undermine the existence and security of the state or the democratic order. The ongoing controversy over the law again became a political issue when the liberal government under President Roh Moo-hyun introduced a proposal to abolish the NSL in the National Assembly. Not only did the proposal failed to win the support of the majority of the Korean public, it was rejected by the Supreme Court in 2004.

The court’s ruling illustrates that, in any democracy, the civil liberties guaranteed in the constitution are not absolute. Limits are inevitably placed on the individual’s exercise of these liberties because the society must seek a balance between competing values. In the case of Korea, the court ruled that the public interest required domestic security to take precedence over civil liberties.

But, in doing so, the court also ruled that as long as exercise of free speech does not endanger national security, the government does not have the power to limit freedom of expression. Therefore, the existence of the National Security Law in of itself or its lawful application does not constitute violation of freedom of expression as many critics would lead people to believe.

While the ruling and the subsequent tightening of the law itself cannot prevent the government from abusing it, the burden of proof is on the government that the defendant is guilty of subversion.

As a result, the courts have ruled in favor of defendants accused of violating the NSL for failure on the part of the government to pass the “clear danger test.”

While the NSL may have an indirect effect of dampening criticism of the government for fear of potential criminal prosecution, its restriction of free speech in cases where national security is clearly endangered does not itself undermine democracy. Only when after the security threat from North Korea no longer exists and the NSL is not repealed can one make a convincing argument that its continuing existence is a serious threat to the viability of democracy.

The use of the anti-defamation law by liberal and conservative governments against their critics has also raised concerns about restricting free speech. Although the impact of the law has been exaggerated, its dampening effect on the free flow of information and ideas necessary for fostering public debate is problematic. But, contrary to its critics, the high-profile defamation cases against the Korean media have not been successful because the criminal code specifically exempts facts that may be considered defamatory if they are true facts presented to serve the public interest.

The Seoul Central Court, for example, found the creators of a news program that questioned the safety of imported US beef leading to widespread national protest not guilty of criminal defamation in 2011 because, even though the facts could be perceived to be distorted or exaggerated, they were presented to inform public opinion and debate on an issue affecting public welfare.

Because the burden of proof requires the government to meet exacting standards in successfully prosecuting a person for criminal defamation, more than 90 percent of prosecutor’s cases are dismissed or defeated. As a result, the government cannot easily use this law as a tool to silence its critics.

But even if the law allows government officials to charge people with defamation, they should refrain from resorting to this law because it can discourage the public from freely criticizing their government. It could lead to self-censorship for fear of government reprisal.

For this reason, in advanced democracies the governments as a practice do not file defamation charges against even their harshest critics.

Lastly, the criticism against the Park administration of attempting to suppress diversity of opinion by mandating the use of government-issued history textbooks in secondary public schools raises questions about government’s commitment to democratic values. Only by having the widest access to different views and opinions can people make informed choices in a democracy. The danger of government-issued textbooks is that it may try to inculcate a view of history that is ideologically biased in favor of whoever is in power, be it liberal or conservative government.

Although government issued textbooks are not anti-democratic per se if certain safeguards are established such as independence from government interference, transparency, accountability, and the diversity of the panel of experts, they can unduly restrict the ability of people to make informed choices based on widest possible exposure to different views and opinions. A slight majority of the Korean public do not support this measure and the opposition parties have threatened to pass legislation that would nullify the government’s attempt to implement the measure through an administrative decree.

While the Ministry of Education has completed drafting the textbook, it has decided to delay the implementation by one year due to the opposition from the broad spectrum of Korean society including academics, civic groups, opposition parties, and the public.

Unlike in an ideal world where a democratic government would always act in accordance with the rules and norms upon which it is based, in the real world the governments of even the advanced democracies have acted in ways contrary to democratic principles and values, which they purport to uphold. While those actions should not be taken lightly or glossed over, those actions taken individually or in isolation are insufficient as measures for assessing the overall quality of democracy.

The more important consideration for evaluating democracy is not the weakness or the failure of any particular institution or aspect of democracy to function properly in isolation, but whether democracy, as a dynamic system of institutions and linkages facilitating interaction within and among the government and political and civil societies or sectors, enables the functional weakness or failure of any one part or aspect of the overall system to be corrected by the actions of other institutions or sectoral entities.

From this perspective, the relevant criterion for assessing democracy is how effective are the other institutional actors and entities in responding to and remedying the particular dysfunction or breakdown of any one part or aspect of the interconnected system.

Thus, in evaluating democracy, one should focus on the extent to which system of institutions and linkages enables self-correction through the interaction of the relevant institutions and sectoral entities.

Some of the questions that need to be addressed in evaluating democracy are: Is there a strong system of checks and balances within the government to prevent abuse of power? Do the people have the means of legal redress in an independent court of law over improper acts of the government? Is there a free press to monitor and keep the public informed of government incompetence and wrongdoing? Is there a vigorous civil society and informed public that can apply pressure on the government to revise or abandon unpopular policies? Do people exercise their civil liberties to protest arbitrary exercise of government power? Do voters use elections to punish incumbent governments for failing to implement campaign promises and ineffective governance? Is there a competitive party system to prevent one party from dominating the policy agenda at the expense of the policy interests of the other parties? Are opposition parties able to influence the ruling party to revise its policies in order to represent the interests of broader society?

If, in accordance with these questions, one evaluates the performance of Korean democracy by how well the system facilitates interaction among the institutions and sectoral entities to correct the partial breakdown or failure in democratic governance, one can only conclude that, in spite of well-deserved criticism of some actions taken by the government that violate democratic principles or norms, Korean democracy is alive and well.

The development of Korean democracy has been a long and arduous process with numerous setbacks and false starts stretching over a century.  In fact, from the very first time a political movement emerged to promote democracy in the waning days of the Korean monarchy in the late 1890s to the successful democratic transition in 1987, it has taken Korea more than a century to complete the political transformation.  Its success is a testimony to the determination of the Korean people to continue their struggle until they had transformed their vision of a self-governing polity into reality. 

Because it has been a hard-fought victory in which many Koreans made the ultimate sacrifice, the claims of the decline of democracy in Korea are at best premature.  While Korean democracy remains a “work in progress,” its consolidation is an accomplishment that ranks along with the major transitions in Korean history that stretches back over a millennium. 

Steven Kim is Visiting Professor at National Chengchi University.  He was formerly a professor at the DKI Asia-Pacific Center for Security Studies and research fellow at the Sejong Institute.