The Republic of Korea's Political Parties Law and its Consistency with International Laws and Practices
Han, Jung Youn
HANKUK UNIVERSITY OF FOREIGN STUDIES. GRADUATE SCHOOL OF INTERNATIONAL AREA STUDIES
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The Republic of Korea's Political Parties Law and its Consistency with International Laws and Practices The recent request made by the government of President Park Geun-hye to the Constitutional Court of South Korea to disband the Unified Progressive Party, which is a small leftist party accused of supporting North Korea, was followed by the Constitutional Court's decision on February 27 of 2014 to apply civil procedure on this case. This is the first case to be heard based on the article 8 (4) of ROK's Constitution. According to the article 8(4), “If the purpose or activities of a political party are contrary to the democratic basic order, the Government may bring an action for its dissolution in the Constitutional Court, and the political party may be dissolved by decision of the Constitutional Court. This paper would answer the following question: Is Republic of Korea's dissolution of political party law consistent with the international law and practices? Also, how do these international laws and practices similar and/or different in their interpretation of specifically article 8(4) of ROK Constitution, "contrary to the fundamental democratic order”? Freedom of association is the core right that addresses the functioning of political parties. In Republic of Korea, a treaty has the same effect as the domestic laws, which the people of Korea have the obligation to observe. (Article 6.1 of the ROK Constitution).After looking into the International Covenant on Civil and Political Rights (ICCPR) and the ROK's laws on freedom of association, both the article 21.1 (Freedom of general association) and the article 8.1(Right to establish political parties) are consistent with the ICCPR since they all guarantee the freedom of association for everyone. Regarding conditions for restrictions on the freedom of association, the ROK allows the restrictions to take place with the interest of national security or public safety or public order mentioned in the article 22(2) of the ICCPR, therefore, it is consistent with the international law. Moreover, the article 8(4) of the ROK Constitution is consistent with the ICCPR's conditions for restrictions on freedom of association as purposes of a political party that is contrary to the fundamental democratic order will violate national security or public safety. After comparing the ROK laws and other states' laws regarding Political Parties, the research found that whether a state brings to a focus the interest of national security, public order, or protection of rights and freedom of others, the laws of restrictions on freedom association from all these five states (The ROK, Germany, Turkey, Spain, and Japan) observe the article 22(2) of the ICCPR Lastly, Guidelines on Prohibition and Dissolution of Political Parties and Analogous Measures adopted by the Venice Commission provides that the dissolution of a political party amounts to a restriction of freedom association and for such restriction to be justified, the legality and the proportionality of “dissolution” need to be considered. In terms of legality, so long as the ROK interprets “democratic basic order” within the balanced context of its constitution and other laws that strives for a peaceful coexistence with North Korea, its interpretation of what constitutes violation of democratic order is consistent with the trends of international practices of other states. As for proportionality, It should be noted that the article 8(4) of the ROK Constitution does not provide other alternative measures to evaluate the legality of a political party before it goes straight to the constitutional court for a potential dissolution. Therefore, ROK's dissolution of political party law is not consistent with the international standards in terms of proportionality. The Constitutional Court of the Republic of Korea is facing the ongoing case of whether or not to disband the Unified Progressive Party. Before making a decision, it is recommendable to reflect on the Korean history of having disbanded an opposition party without proof when the constitutional law did not exist to protect freedom of association on parties. Also, the Republic of Korea should minimize their restrictions and reservations to the international conventions that guarantee the freedom of association so that everyone can enjoy this right. In addition, taking into different interpretations of what constitutes “Democratic Order” from other states' laws and practices is suggested. Lack of regional human rights commission or court as a remedy to address legality and proportionality of the dissolution of political parties is something Republic of Korea should also consider when making a decision of disbanding a political party.