36. Dissolution of Unified Progressive Party Case

[26-2(B) KCCR 1,2013Hun-Da1, December 19, 2014]

This case involving the dissolution of political parties is the first of its kind in the Korean constitutional history, in which the Court decided to disband the Unified Progressive Party and strip its lawmakers of parliamentary seats, on grounds that the Party’s objectives and activities violate the basic democratic order.

Background of the Case

1.The Unified Progressive Party, or the UPP (the “Respondent,” headed by Chairperson Lee ○-Hee), was created on December 13, 2011 by a merger of the Democratic Labor Party (DLP), the People’s Participation Party (PPP), and the “Alliance for the Creation of New Progressive Party,” whose establishment was led by the members who defected from the New Progressive Party (NPP).

2.The UPP won 13 seats (seven local constituency seats, six proportional representative seats) at the 19th parliamentary election held on April 11, 2012. Immediately after, however, internal conflict occurred in a series of events, including the illegitimate proportional primary, violence at the UPP’s central committee, and the controversy over the expulsion of lawmakers Lee ○-Ki and Kim Jae-yeon. Former members of the PPP and the NPP also defected from the UPP in September 2012. Meanwhile, lawmaker Lee ○-Ki of the UPP was indicted on charges including plotting treason on September 25, 2013.

3.The Government of the Republic of Korea (the “Petitioner”), following the deliberation and decision by a Cabinet meeting on November 5, 2013, filed a petition on the same day requesting dissolution of the Respondent and removal of its lawmakers from office, arguing that the Respondent’s objectives and activities violate the basic

democratic order.

Subject Matter of Review

The subject matter of review in this case is whether the Respondent’s objectives and activities violate the basic democratic order, whether the Respondent should be disbanded, and whether the lawmakers affiliated with the Respondent should be stripped of their seats pending dissolution of the Respondent.

Major Decision of the Case

1.The Constitutional Court’s jurisdiction over political party dissolution

The authority of the Constitutional Court to review the motion requesting dissolution of political parties was introduced by the third constitutional amendment, which is a product of the contemplation of our modern history where a progressive opposition party was disbanded by a unilateral administrative action by the Government. In light of the South Korean history this mechanism emerged as a procedure to protect political parties. Hence, the existence and activities of all political parties are being guaranteed to the utmost, and even if a party appears to be denying and aggressively attacking the basic democratic order, it is protected by the Constitution to the largest possible extent insofar as it engages in forming public political opinions. Thus, the party cannot be disbanded simply by a regular Executive action; it can be excluded from party politics only when the Constitutional Court finds it unconstitutional and decides that it needs to be disbanded. However, this jurisdiction over political party dissolution is also needed as an institutional arrangement to prevent a political party from attacking, seriously damaging, or even abolishing our democratic system and thereby rendering it meaningless.

2. Requirements to dissolve a political party

Article 8 Section 4 of the Constitution provides that, “if the objectives or activities of a political party are against the basic democratic order, the government may bring an action against it in the Constitutional Court.” The issue here is precisely how to interpret this provision in connection with the requirements for initiating adjudication on the dissolution of political parties.

A. Meaning of “objectives and activities of a political party”

“Objectives of a political party” generally refers to the political direction or purpose, or political plans to be practically implemented by a political party. Such objectives are mostly manifested in the official party platform or constitution. But other means, such as official statements by a party’s main figures including the chairperson or party executives, publications such as party journals or propaganda materials, and activities of party members who are influential in the party’s decision-making process or those who are influenced by the party’s ideology, can also be helpful in understanding the party’s objectives. If the real objectives are hidden, they can be unveiled through means other than the party platform.

Meanwhile, “activities of a political party” refer to acts or behaviors by an organ or key officials, members, etc. of a party, which in general are attributable to the party at large.

Considering the structure of the said provision, it is interpreted that the requirement to dissolve a party is met if either the objectives or the activities of a party are in violation of the basic democratic order.

B. Meaning of “basic democratic order”

The idea of the “basic democratic order” stipulated in Article 8 Section 4 of the Constitution, which is founded upon the pluralistic view that believes in the autonomy of reason and presumes that all political opinions have relative truth and rationality, indicates a political order composed of and operated by the democratic decision-making process and freedom and equality that defy all sorts of violent, arbitrary control and respect the majority while caring for the minority. Specifically, the key elements of the basic democratic order specified in the current Constitution are: popular sovereignty, respect for basic human rights, separation of powers, and plural party system.

C. Meaning of “are against”

The conditions for disbanding a political party set forth in Article 8 Section 4 of the Constitution is: “if the objectives or activities of a political party are against the basic democratic order.” The “against‘ herein does not indicate a simple violation or infringement of the basic democratic order; it refers to a situation where the party’s objectives or activities have the concrete danger to cause a substantial threat to our basic democratic order such that restricting the party’s existence itself is necessary, notwithstanding that it is one of the indispensable elements of a democratic society.

D. Compliance with proportionality principle

Since a forced dissolution of a political party amounts to fundamental restriction on the freedom of political party activities, which is a corepolitical fundamental right guaranteed by the Constitution, the ConstitutionalCourt, before handing down a decision, has to consider: Article 37 Section 2 of the Constitution, the limitations of a legal state in the intrusive exercise of state powers, and the fact that the dissolution of

political parties should be a measure of last resort or subsidiary means. For this reason, even if there is an express provision on the dissolution requirement as provided by Article 8 Section 4 of the Constitution, the Constitutional Court’s decision to dissolve a political party can be constitutionally justified only when there are no alternatives other than dissolution to effectively remove the unconstitutionality inherent in the party at issue and where the social interests of the disbanding decision far outweigh its disadvantage, namely the regulation of the freedom of political party activities and a major restriction on the democratic society.

3. The need to consider inter-Korean confrontation as a particularity of the Korean society

The Republic of Korea is proclaimed as a target of attack by its practical enemy North Korea and faces an environment where its Northern neighbor constantly attempts to subvert its current system, and the South Korean basic democratic order ultimately shares the same fate as its nation. Therefore, in this case, which is not irrelevant to the current divided state of the Korean peninsula, we are obliged to contemplate not only the universal principles of constitutionalism but also a number of practical aspects facing our reality, the nation’s particular historical circumstances, as well as the unique awareness and legal sentiment shared by the people, all at the same time.

4. Whether the Respondent’s objectives and activities contravene the basic democratic order

A.The values or ideological ideal held by the Respondent is “progressive democracy.” However, the idea of progressive democracy has been interpreted differently depending on the circumstances of the times, and, in fact, the goals of a political party eventually correspond with the ideological disposition and the direction of the party’s leading members. Therefore, in order to identify the true meaning of progressive

democracy advocated by the Respondent, it is necessary that we look beyond the literal sense of the party platform and examine the detailed process of its adoption, as well as the perception about the platform and the direction taken by the members who currently lead the Respondent.

The Respondent was created through a merger between the DLP, the PPP, and the “Alliance for the Creation of New Progressive Party,” which is composed of members who defected from the NPP, and the so-called “Jaju (translated as self-reliance) faction,” which represents the East Kyeongi Alliance, the Busan Ulsan Alliance, and the Gwangju Jeonnam Alliance that used to be the regional chapters of the “National Alliance for Democracy and Unification of Korea,” advocated or supported the introduction of progressive democracy and even led the creation of the Respondent. As the PPP and other countervailing forces defected from the UPP due to events such as the illegitimate proportional primary and the violence at the central committee, the key members of the East Kyeongi Alliance, the Gwangju Jeonnam Alliance, and the Busan Ulsan Alliance who uphold progressive democracy, as well as those who share the same ideological ideal with them (hereinafter the “leading members of the Respondent”) have led the party by making decisions according to their policy on major issues, including the selection of party executives. Given their formation process, attitude toward the North, activities, ideological uniformity, etc., the leading members of the Respondent who mostly practiced Juche, a state-imposed system of thought created and implemented by Kim Il Sung, as the guidance ideology within the anti-government National Democratic Revolution Party (hereinafter, “NDRP”), the enemy-benefitting Action and Solidarity for the South-North Joint Declaration (hereinafter, the “Action and Solidarity”), and the pro-North Korean Il-sim group, are followers of North Korea.

Inferring from how they perceive and understand the progressive democracy set forth in the Respondent’s platform, the leading members

of the Respondent observe South Korea as a pariah capitalist or an anti-capitalist colony under the control of foreign powers and argue that this contradiction is trampling sovereignty and impoverishing the lives of the people, proposing the “progressive democracy system” as a new alternative as well as an interim stage before transitioning to socialism. The leading members of the Respondent propose national self-reliance (Jaju, or self-reliance), democracy (Minju, or democracy), and national reconciliation (Tongil, or unification) as tasks to be undertaken under the platform, and see that people’s democratic transformation in South Korea is a precondition to implementing the final platform task—achieving socialism through federalism-based unification—and that self-reliance should be first achieved in order to accomplish unification and democracy. They advocate the seizure of power through election and the right of resistance as a way to advance progressive democracy, and claim that, if necessary, the existing free democratic system can be taken over by a new progressive democratic regime through use of force. All considered, the goal of the Respondent’s platform is to primarily achieve progressive democracy through violence and to finally realize socialism through unification.

B.Since Kim Jong Un came to power following the death of his father Kim Il Sung on December 17, 2011, North Korea has been increasing its threat of military provocation against South Korea starting around December 2012. Pyongyang launched a long-range rocket using its ballistic missile capabilities on December 12, 2012; conducted its third nuclear test on February 12, 2013; declared invalid the armistice agreement that ended the Korean War on March 5, 2013; stated that it will go on “No. 1” combat ready posture on March 26, 2013; recommended ambassadors in Pyongyang, foreigners residing in North Korea, etc. to leave North Korea by citing an imminent war on April 5 and 9, 2013; threatened to burn five islands in the West Sea to flames on May 7, 2013 and launched a short-range missile over the East Sea from May 18 to 20, 2013. Meanwhile, the Respondent’s Lee ○-Ki and

other key members of the East Kyeongi Alliance considered the then political landscape as a state of war and, under the lead of Lee ○-Ki, held gatherings to plot treason on May 10 and 12, 2013 with the purpose of sympathizing with North Korea in the event of war and implementing the use of force, including the destruction of state infrastructure, weapons manufacture and seizure, and disturbance of communication. More than 130 people attended the above gatherings, including three out of five lawmakers affiliated with the Respondent andtheir advisors, central committee members or delegates of the Respondent. In light of the detailed circumstances behind the meetings, the attendees’ position and status within the Respondent, and the Respondent’s supportive attitude toward this case, we can attribute the said gatherings to the activities of the Respondent.

In addition, the illegitimate proportional primary, the violence at the central committee, and the manipulation of opinion polls in Gwanak-B district show that members of the Respondent sought to secure election of candidates of their choice through violent means without any debate or voting process, which undermines democratic principles by distorting the democratic formation of opinions within the party, making the election system void.

C. As reviewed above, the leading members of the Respondent aim to accomplish progressive democracy through violence and to ultimately achieve socialism through unification. They are followers of North Korea, and their idea of progressive democracy is overall the same or very similar to the North’s revolutionary strategy against South Korea in almost all respects. At the same time, they defend the position of Pyongyang and deny the legitimacy of South Korea, while calling for revolution in line with the theory of People’s Democracy Revolution, a tendency that is clearly shown in the insurrection case.

Given the aforementioned circumstances and the fact that the leading

members of the Respondent are taking control of the Respondent, we can attribute their objectives and activities to those of the Respondent. Considering all this, it can be concluded that the Respondent’s true objectives and activities are aimed at initially implementing progressive democracy through use of force and eventually achieving North Korean-style socialism.

D.The North Korean-style socialist regime advocated by the Respondent fundamentally contradicts the basic democratic order in that it takes the political line proposed by the Chosun Workers Party as the absolute good and advocates one-man dictatorship founded on people’s democratic dictatorship and leadership theory associated with the party line that focuses on a particular class. The Respondent also contests that violence such as an en masse protest can be used to overthrow the existing free democratic system in order to achieve progressive democracy, which, again, is contrary to the basic democratic order. Meanwhile, the activities of the Respondent, such as the meetings aimed at insurrection, the illegitimate proportional primary, the violence at the central committee, and the manipulation of opinion polls in Gwanak-B district, deny the national existence, parliamentary system, and the rule of law in terms of substance. In terms of their means or nature, the activities, which actively resort to violence to serve the Respondent’s purpose, are in violation of the ideas of democracy.

Taking into account the details and forms of activities and the disposition of the leading members of the Respondent, as well as the very supportive and protective attitude of the Respondent toward its members’ activities, a number of activities of the Respondent reviewed earlier including the gatherings where treason was plotted, are grounded on the actual objectives of the Respondent and are highly likely to be repeated in similar circumstances. Furthermore, the fact that the Respondent admits the possibility of taking over power through violence tells us that many of the Respondent’s activities reveal the concrete risk

of inflicting substantial harm to the basic democratic order. In particular, the insurrection case, in which the leading members of the Respondent sympathized with North Korea and discussed specific ways to endanger the existence of South Korea, is a clear demonstration of the Respondent’s true objectives, and it exceeds the limits of the freedom of expression and doubles the concrete risk of damage to the basic democratic order.

Consequently, the Respondent’s real objectives and the activities based thereon are considered to have generated a concrete risk of causing substantial harm to the basic democratic order of our society, and are thus in violation of the basic democratic order.

5.Whether disbanding the Respondent is compatible with the proportionalityprinciple

The objectives and activities of the Respondent aimed at implementing the North Korean-style socialism contain seriously unconstitutionalelements; South Korea is in a unique situation where it faces confrontationwith North Korea, a country that strives to overthrow the government of its southern neighbor; there is no alternative other than dissolution in removing the risk of the Respondent, since criminal punishment of the party’s individual members will not be sufficient to eliminate the danger inherent in the entire party; the importance of social interest of safeguarding the basic democratic order and democratic pluralism far outweighs the disadvantage caused by party dissolution, namely the fundamental restraint on the Respondent’s freedom to engage in party activities or partial restriction on pluralistic democracy. All these considered, the decision to dissolve the Respondent is an inevitable solution to effectively remove the risk posed to the basic democratic order, and is therefore not in violation of the principle of proportionality.

6. Whether members of a political party shall be removed from seats when the party is dissolved by the Constitutional Court

It is not specified in law whether members of the National Assembly shall lose their seats when their party is dissolved by the Constitutional Court. Yet, the essence of entrusting the Constitutional Court with the power to disband parties lies in protecting the citizens by excluding the parties opposing the basic democratic order from forming political opinions, and it becomes impossible to obtain substantial effectiveness of the decision to dissolve a party unless its members are stripped of their parliamentary membership. For reasons such as the said purpose, once the Constitutional Court decides to dissolve a political party, its affiliated lawmakers should be removed from their National Assembly seats regardless of how they were elected.

Dissenting Opinion of Justice Kim Yi-Su

1. Whether objectives or activities of the Respondent violate the basic democratic order

A. The “people’s sovereignty” asserted by the Respondent does not deny the principle of popular sovereignty itself. It seeks to abolish the status quo in which the sovereignty is exclusively concentrated in certain privileged groups and provide substantial guarantee of sovereign rights to the politically and economically marginalized groups and classes. Additionally, the “independent and self-sufficient economy centered on people’s livelihood” supported by the Respondent proclaims the strengthening of national regulation and coordination designed to exercise democratic control over the market and deliver social welfare and justice; it does not require the denial of private property rights or economic liberties that serve as the economic foundation of the protection of fundamental rights. Furthermore, the “Korean federalism” proposed by the Respondent seems to be based on the idea of a unified

state in transition before achieving de jure unification, but the Respondent’s ultimate idea of the unified state is not envisaged in the federalism-based plan for Korea’s unification. Other arguments of the Respondent such as the abolition of the National Security Act, etc. are no more than just supporting a certain position about many current issues that have already been fully discussed in society. In other words, the details of “progressive democracy” in the Respondent’s platform hardly imply the denial of a certain group’s sovereignty and fundamental rights or concur with the North’s strategy of unification under communism.

Meanwhile, the Respondent’s idea of “progressive democracy” was adopted to the platform before the Respondent succeeded the DLP. When the adoption process is taken into full consideration, it appears that progressive democracy advocated by the Respondent demonstrates the party’s propensity for a broad sense of socialism that reflects socialist ideals and values, probably influenced by the models of South American countries such as Venezuela and Brazil. And “election victory empowered by mass struggle” or “unifying strategy in and outside the National Assembly” presented by the DLP are strategic choices to ultimately achieve the assumption of power through election and overcome the limitations of a minor party; they are neither considered a tolerance of violence nor an implementation of North Korea’s United Front Tactics, a means to carry out the North’s revolutionary strategy against South Korea.

The Petitioner argues that the Respondent or its leading members aspire to the North Korean regime and attempt to overthrow the South Korean government. Yet, considering the entire process of splitting, creating, and re-splitting of party as the DLP evolved into the Respondent, despite the fact that the North Korean policy or position of the Jaju faction within the DLP may have been somewhat isolated from the majority opinion of our society, it can neither be decided that the

political line of the Jaju faction itself is founded upon the pursuit of a North Korean-style socialism based on Juche ideology or unconditional following of North Korea, nor that the increase in the number of those who are supporters or part of the pro- Jaju faction within the Respondent is proof that only the pro-North Korean members of the former DLP remain in the current Respondent. Additionally, the members of the Respondent who can be recognized as members, lower members, or relevant individuals of the anti-government NDRP constitute only a small fraction of the whole party who have been convicted individually or mentioned in rulings as members, and it is hard to conclude that, of those few members, Lee ○-Ki and his supporters are taking control of the Respondent by forming an organization of ideological cohesion. Furthermore, it is difficult to readily determine that the decision-making of the East Kyeongi Alliance, the Gwangju Jeonnam Alliance, and the Busan Ulsan Kyeongnam Alliance, which are alleged by the Petitioner to be leading the Respondent, was controlled by the NDRP or its members; the Alliances do not appear to be acting in unity and solidarity based on shared or supported ideology; and the direct connection between the Respondent and North Korea has by no means been substantiated.

Although the Respondent may attempt to establish an alternative regime or implement structural and radical transformation, it is not to be decided that the Respondent’s objectives violate the basic democratic order unless it is concretely proven that the Respondent endorses transformation through violent or other anti-democratic means, or aims at overturning the basic democratic order.

B. The meetings held by Kyeonggi Party, a regional branch of the Respondent, on May 10 and 12, 2013 and the remarks made by Lee ○-Ki and others on these occasions were more than just words because they contain the concrete danger of inflicting substantial harm to the basic democratic order. But the activities were undertaken against the

basic political line of the Respondent at large, and it is not sufficient to reason that the Respondent actively supports such activities or that its political line is affected by the activities. The activities, therefore, cannot be regarded as the responsibility of the entire Respondent.

Meanwhile, it is acknowledged that individual activities of some members of the Respondent, such as the illegitimate proportional primary, violence at the central committee, and public opinion rigging before a primary where two opposition parties presented a unified candidate, undermined the democracy of the Respondent, disregarded the principles of democratic decision-making, and violated a positive law. However, not all members of the Respondent engaged in the said activities in an organized, planned, active, and consistent manner, and aside from the said activities, the Respondent has been engaging in normal activities just like other parties, and sporadic election irregularities or crimes of those associated with political parties have been dealt with by punishing the perpetrator and holding the party in question politically responsible. These considered, it does not suffice to say that the abovementioned activities are founded upon or, reversely, have major impact on the Respondent’s own political line and thus entail a concrete danger of actual damage to the basic democratic order.

Therefore, the activities of the Respondent are not in violation of the basic democratic order.

2.Whether the Constitutional Court’s decision to disband the Respondent is consistent with the proportionality principle

The interest to be achieved from the decision to disband the Respondent is relatively insignificant compared to the severe damage it may cause to the democracy of our society. Although such a decision should be made very limitedly, confined to cases of urgency as a last resort and subsidiary means, it is in violation of the proportionality

principle given the following: a) if there are forces within theRespondent who attempt to overthrow the South Korean basic democraticorder, they can be excluded from making policy decisions through means such as criminal punishment, b) although, in principle, it is most fit to leave the decision of dissolving a party to the political public forum, there already is substantial criticism and refutation about the Respondent in the political public sphere such as local elections, c) disbanding the Respondent may result in a social stigma for the vast majority of its ordinary members, and d) today’s reality involving South and North Korea has changed, including the significant gap in national power.

Concurring opinion of Justices Ahn Chang-Ho and Cho Yong-Ho

The Respondent argues, while pointing to the portion of its party platform concerning social democracy, that there is no ulterior motive in progressive democracy other than that suggested in the text itself. However, the progressive democracy advocated by the Respondent is different from social democracy, and it can hardly be said that there is no hidden objective of ultimately pursuing the North Korean-style socialism just because they are promoting the elements that can be implemented in the “current” social democracy. The Respondent claims that “people’s sovereignty” is merely a concept designed to represent the interest of a specific class, namely “the people.” However, pursuing an ultimate objective of protecting the interest of a certain class while beinghostile to the remaining members of society is not consistent with the idea of popular sovereignty, and the people’s sovereignty set forth by the leading members of the Respondent seems to imply nothing more thanestablishing people’s sovereignty in a people’s democratic state through the people’s democratic revolution and the people’s democratic dictatorship. As the progressive democratic system advocated by the leading members of the Respondent indicates a society controlled by class dictatorship or “popular dictatorship,” which is classified as proletariat dictatorship, the Respondent’s primary (or interim) objective

of implementing progressive democracy, as well as its ultimate objective of advancing the North Korean-style socialism, is contrary to the basic democratic order.

In reviewing the federalism-based unification plan endorsed by the Respondent, the term “federalism” can be construed either compatible or incompatible with the basic democratic order depending on one’s proposed objectives and substances. However, the idea of a joint referendum by South and North Korea, as proposed by the leading members of the Respondent, involves only the people and not the conservatives who should be subject to reform, and, in North Korea, the people’s opinions are determined by those of the leader and the Chosun Workers Party working under a socialist regime. For this reason, it cannot be said that the ideas and minds of the entire people are fully reflected even if the constitution and state of a unified Korea is established by a peninsula-wide referendum. The rationale of the leading members of the Respondent for adopting a so-called lower-phase federal unification is not convincing, and their unification plan based on “one people, one state, two systems, and two governments” only appears to be a strategy to eventually realize the North Korean-style socialism.