Like all post-colonial democratic societies, South Korea suffers from an imbalance of power between the three organs of governance — Executive, Legislature and the Judiciary, where the balance tips in favour of the Executive or the President so much so that scholar Yuki Asaba terms the South Korean President the second most powerful leader after the President of Kyrgyzstan, certainly the most powerful when it comes to functional democracies. With Presidential elections just around the corner, it is interesting to analyse the nature of the Presidential system in South Korea.
The sources of this executive dominance are mainly historical, constitutional, organisational and political in nature.
The 1987 Constitution builds a system where the President is the most powerful element of government. He/She appoints a cabinet consisting of 23 posts, including the Prime Minister, 2 Deputy Prime Ministers and 20 other ministry posts.
The imbalance of power in favour of the executive has a historical basis. The Japanese ruled Korea over three and a half decades (1910-1945) with an iron fist through a highly centralised system where all power flowed from the General Headquarters of the Governor General, a military personnel. Being governed in a military style for so long, the Korean psyche post liberation in 1945 imbibed centralised control as an effective form of governance.
The Syngman Rhee regime which marked the First Republic (1948-1960), was highly notorious for its undemocratic governance. While the civil society was effectively repressed, Rhee’s Liberal Party dominated all aspects of the political society in a “quasi-Leninist” fashion. Everything, from police and military to the economy, was kept under firm control as the Liberal Party penetrated all state institutions, weakening it both in functionality and essence.
The Second Republic’s (April 1960-May 1961) tryst with the parliamentary form of governance was short-lived as it was soon overthrown by a military coup of May 1961 led by General Park Chung Hee, unleashing three decades of military rule.
Park strengthened the executive, and the legislative was weakened through a powerful ruling party and weak sham opposition parties while the Judiciary was relegated to a figurehead position. This pretense of democracy was dissolved following the Yushin Constitution which marked the Fourth Republic (1972-1979). General Chun Doo-hwan, who came to power in 1979 following the Dec. 12 coup, replicated most features of Park’s authoritarian rule.
The Sixth Republic (1987-Present) inherited a strong executive which has been labelled by many including Seonhwa Park as “Imperial Presidency“, reminiscent of the authoritative past.
The Constitution and the amended Presidential Election Law of 1987 provide for election of the president by direct, nationwide election through a secret ballot. While in office, the President is exempted from criminal liability except for insurrection or treason.
Apart from additional discretionary powers such as to declare war, conclude peace, etc. the president can, in times of serious internal or external turmoil or economic crises, assume emergency powers “for the maintenance of national security or public peace and order” where the National Assembly has a mere non-binding ” right to consent”. The President is also permitted to amend or abolish existing laws for the duration of a “crisis”.
As per Article 86(1), the prime minister assumes a subordinate position to the president. Moreover, the fate of the prime minister rests with the president as he can appoint and remove the prime minister at his/her discretion. He/She can also appoint and remove the cabinet ministers. The ambivalence in the constitution regarding the powers of the president has allowed many presidents of the Sixth Republic to abuse their powers. For instance, President Roh Moo hyun mooted all discussions on the need of the prime minister.
The president also enjoys enormous legislative powers through the presidential veto using which he can block a bill from being passed. By Article 54(2), only the government led by the president has the power to make the fiscal budget which can be discussed by the National Assembly but it cannot make any major changes (Article 57).
The President draws power from an elaborate organisation he sits atop. These constitutional organs include the National Security Council, which provides advice concerning the foreign, military, and domestic policies bearing on national security. Through the Audit and Inspection Board, the President has the power to scrutinise government agencies and public officials, bringing bureaucracy under his watch.
The President enjoys an upper hand over the Judiciary as well. He/She appoints the Chief Justice and Justices of the Supreme Court with the consent of the National Assembly. Three of the nine members of the Constitutional Court are directly appointed by the President, while the other six are appointed by the National Assembly and the Chief justice (3 members each), which are in turn indirectly influenced by the President.
There is also a financial source of power. The central government led by the president controls the purse and allocates resources to local governments leading to an imbalance of power where the president dominates. This is a legacy of military rule and is the reason why imbalances in regional development can be seen.
The political source of the Presidential powers can be located in two poles — the weakness of the political parties and of the civil society.
Thanks to the United States’ constant support for an authoritative executive and ideological control to curb the spread of Communism as a part of the Cold War politics, political parties in South Korea developed in a reverse way than they do in other polities. Instead of being developed from the grassroots, political parties developed from above and hence, reflect the interests of the politicians not the people, emboldening the executive.
The glaring personalism and regionalism has led to the formation of transient parties with shifting support, creating a volatile political system. The absence of an alternate source of power in the form of a strong opposition thus empowers the executive. This is evident in the 1987 elections, the first ever election after democracy was reinstituted. Even with democratisation, the ruling party, Democratic Justice Party, won the elections because its candidate Roh Tae Woo presented the only moderate alternative to the public among the two rival factions of Kim Dae Jung and Kim Young sam. Hence, after decades of struggle yet another former military leader sat in the Blue House with just 36.6% of vote share.
Civil society has always been weak in Korea, first under a brutal colonial rule and then under authoritative regimes of Rhee, Park and Chun. Opposition to political rule meant risking one’s life, the Kwangju massacre of 1980 being the most severe instance. The people were left with two choices — either to accept the status quo or to die protesting. However, regardless of the state brutality, civil society in South Korea remained active, subversive and combative in character.
Though the South Korean President is an all powerful figure, there are several limits to his power.
First and foremost is the constitutional limit of a single five year term placed by the 1987 constitution which prevents a reversal to the authoritative past of enormous personal power of the presidents.
The constitution also mandates that the president include the national assembly in the decision on the removal of the prime minister though non-binding, once recommended, the president must follow the legislature’s recommendation without special reasons.
Moreover, the constitution mandates that emergency measures must be referred to the national assembly for concurrence. If not endorsed by the assembly, the emergency measures can be revoked and laws overridden by oresidential orders regain their original effect. Contrary to the 1980 constitution, the 1987 constitution states that the president is not permitted to dissolve the national assembly, the fixed term for which is 4 years.
The President is not just expected to put constitutional amendments to a referendum under Article 130(1) which is evident from the constitutional court’s declaration of President Roh Moo Hyun’s policy of shifting the capital from Seoul to Chungchongdo as unconstitutional on the grounds that it did not follow a referendum. The constitutional court with jurisdiction over the constitutionality of laws, impeachment and constitutional complaint (Article 111) too plays a constraining role to the executive’s power.
The president can and, as Park Geun hye’s case shows, has been impeached under Article 65(2). Moreover, Article 53(4) presents cases where the presidential veto can be overridden.
Certain political limits to the presidential power also exist, one locus being the issue of preferential arrangement i.e. the pursuit of different or similar policies between the executive and the legislature. The preferential arrangement between the president and the legislature is mainly influenced by seat allocation rules, district magnitude, terms and the electoral cycle. In this situation, policy preferences for the president tend to be national in scope, while those for the legislature are local. While the legislators can go for re-election, the president cannot. Hence, the legislators tend to be more assertive to pursue their policies so in cases where the president’s party does not have a majority or he/she assumes a weak position within the party, the president needs to give in to the preferences of the legislature.
While no constitutional amendment has taken place since 1987, it is partisan power, a function of the presidential party’s seat share in the legislature and the president’s control over the party organisation which guides why certain presidents, even with enormous powers, cannot fulfill their main policies. Four scenarios of partisan power occur: when the president’s party is a majority and he/she controls the party; when the president’s party is in minority but the president controls the party;nthe presidential party enjoys the majority in the legislature but the president does not control the party and lastly, when the presidential party is a minority in the legislature and the president does not control the party. While the first two scenarios provide a strong and the third, a moderate scenario for presidential dominance, the fourth builds a weak case.
This, in turn, is guided by the differing electoral terms of the president and the legislature. A president in his full term sees two legislative eleactions — one soon after getting elected himself/herself and one before he/she leaves, owing to its 4 years term and his/her own term of 5 years.
A “honeymoon period” is a common feature of South Korean politics when soon after elections, the popularity of the president is high and as a result his/her party wins votes but as he/she nears the end of the presidency, this support plummets and he/she loses popularity within the party. The president hence loses the strict discipline and command to recommend candidates towards the end which he/she enjoys at the beginning.
A case of this is how with a minority party status as his junior party coalition of ULD shifted to the opposition party GNP over the issue of removal of unification minister Lim Dong won when his principal policy of negotiating with North Korea faced a deadlock, Kim Dae Jung gave in to the demands of the legislature and removed Lim.
Hence, it can be stated that though the South Korean political system provides various sources from which the president can tap enormous powers, it also presents countering exigencies which dilute it from consolidating into a full fledged autocracy of the past. However, these forces are not wrought in the system but are born out of the dynamics of the political functioning. While this is a sign ahead for democratic consolidation, reforms are highly needed to establish a true and fair balance of power.
Cherry Hitkari is a postgraduate student of East Asian Studies at University of Delhi, India.
