EAI Commentary: An Assessment of President Moon Jae-in's Proposed Constitutional Amendment

[Editor's Note]

With President Moon Jae-in's proposal of a constitutional amendment on March 26, discussions on constitutional reform are expected to gain momentum at the parliamentary level. The most contentious issue is likely to be the restructuring of the governance system. While opinions are divided between the semi-presidential system, often referred to as the 'responsible prime minister system,' and the 'four-year presidential term with re-election,' President Moon has proposed a 'four-year presidential term with re-election' in his amendment bill. Professor Lee Sun-woo of Chonbuk National University commends the proposal to hold general elections in the second year of the presidential term, thereby giving them the character of a mid-term evaluation and serving as a mechanism for checks and balances. However, he expresses concern over the continued concentration of appointment powers for key government bodies in the hands of the president. Under such a structure, the problem of 'imperial rule during the term and lame duck syndrome at the end of the term' is likely to recur. Therefore, Professor Lee proposes transferring the nomination rights for the heads of three power institutions, excluding the Auditor-General and the Director of the National Intelligence Service, to the National Assembly.

The political landscape is heated by President Moon Jae-in's sudden proposal for a constitutional amendment. Expectations and concerns are mixed. In fact, objections to the current constitution, enacted with democratization in 1987, have been persistent. More presidents have been remembered for their failures than for their successes. The administration of former President Park Geun-hye even led to an unprecedented national paralysis since democratization. Therefore, despite considerable political and social controversy, it seems practically difficult to indefinitely postpone the push for constitutional reform.

However, the plan for the National Assembly's special committee on constitutional reform to submit a bill was thwarted due to differences in partisan interests. Consequently, President Moon chose to propose an amendment himself under the current constitution. Despite President Moon's explanation for the proposal, the true intent of the amendment is unlikely to be fully trusted due to partisan conflicts. Nevertheless, the proposal of an amendment was a threshold that someone had to cross. Above all, considering that past attempts at constitutional discourse, driven by various political engineering calculations of previous presidents, or surprise proposals to overcome political impasses, have repeatedly failed to even begin, opening the first door of the process, despite the challenging political process of parliamentary approval and a national referendum, holds significant meaning.

The question then ultimately lies in the content of the amendment. Firstly, there is little room for disagreement with the preamble, which declares it a democratic constitution by inscribing the proud history of democracy, starting with the May 18 Gwangju Democratization Movement, and by clarifying the contemporary spirit of local autonomy and environmental friendliness by adding provisions for autonomy, decentralization, balanced regional development, and coexistence with nature. In particular, the substantial increase in provisions to strengthen local autonomy, while perhaps perceived as insufficient by some, can be considered a significant change in that it affirms local autonomy as one of the cornerstones of the constitution. Furthermore, expanding the subjects of basic rights, which should be universally guaranteed regardless of nationality, from 'nationals' to 'people,' and specifying rights such as the right to life, the right not to have one's body and mind harmed, and the right to live healthily and safely, incorporates significantly more advanced democratic values than before. Moreover, the introduction of a recall system for National Assembly members, although requiring careful consideration of its conditions and procedures, is largely in line with the era's demand for the expansion of direct democracy.

Additionally, the addition of 'coexistence' to the economic democratization clause, the explicit mention of the public concept of land, the strengthening of social security and labor rights against social risks such as poverty, illness, old age, unemployment, and destitution, and the specification of efforts to protect small business owners and promote the social economy are all recognized as sufficiently necessary for their potential to contribute to curbing growing polarization and pursuing balanced development between social strata. Meanwhile, a particularly noteworthy provision in this amendment bill is Article 7, concerning the obligation of retired public officials to maintain fairness and integrity in their duties. Considering that reform attempts regarding the severe abuses of 'precedent-based favors' have not made significant progress due to concerns about unconstitutionality, this is also a very encouraging development.

Viewed in this light, the presidential proposal for constitutional amendment appears to reflect a stronger will for reform oriented towards distribution rather than the protection of vested interests concerning many issues that have been subject to social debate. Nevertheless, the most controversial aspect of this amendment bill will undoubtedly be related to the governance structure. This is because the interests of politicians, who can exert the greatest influence on the passage of the amendment bill through the National Assembly, are directly involved in this particular area.

As is well known, the National Assembly has advocated for a semi-presidential system, where a prime minister recommended or elected by the Assembly independently performs part of the executive functions, thereby seeking to reduce the power of the so-called 'imperial presidency.' In contrast, President Moon, through this amendment bill, has effectively proposed a very firm form of 'four-year presidential term with re-election.' Despite the possibility that the amendment bill could be significantly altered depending on the consensus within the National Assembly, this proposal increases the likelihood that the future constitutional reform process will be condensed into the issue of whether to change the governance structure to one closely resembling a four-year term presidency with re-election, or to maintain the status quo. Of course, depending on the proponents of constitutional reform, there may be preferences for forms of government other than the presidential system, and the author himself finds it difficult to definitively answer whether the current amendment bill is optimal from the perspective of governance structure. However, given that the main issues concerning the governance structure are likely to be raised centered on the operational principles of a 'four-year presidential term with re-election,' that public support for this is relatively high, and that this form of government could be operated quite successfully depending on the actual institutional design, it is reasonable at this point to evaluate the amendment bill based on the premise of the presidential system.

First, one of the primary concerns regarding the 'four-year presidential term with re-election' was the overlap in the election cycles of the president and National Assembly members. In this regard, it is highly fortunate that the amendment is designed to encourage general elections to be held in the second year of the presidential term, allowing the latter to serve as a mid-term evaluation. Typically, one of the most significant weaknesses of the presidential system is identified as the frequent emergence of a minority government or a divided government. In many cases, institutional changes are attempted to artificially align the cycles of these two elections. However, a divided government situation can paradoxically be interpreted as a core mechanism of checks and balances inherent in the operational principles of the presidential system. Therefore, the normal functioning of this governance structure should ideally incentivize both the president and the National Assembly to overcome the divided government situation and contribute to stable governance.

Furthermore, examining the provisions related to prime ministerial appointments in the amendment bill, if one seeks to pursue a relatively complete presidential system, there are no significant issues with the presidential amendment bill, which retains the current system where the prime minister is appointed by the president and approved by the National Assembly. As the presidential system is a governance structure that clearly assigns final responsibility for the operation of the executive branch to the president, the National Assembly recommending a prime minister is somewhat contrary to its operating principles. While the National Assembly may seek to achieve an effect similar to a semi-presidential system or a diarchy through prime ministerial recommendations, in the absence of a vote of no confidence in the cabinet, the National Assembly exercising the right to recommend a prime minister, contrary to its intentions, is likely to create institutional maladjustment that yields little decentralization effect while increasing the possibility of unproductive conflict between the president and the National Assembly.

However, on the other hand, there are some quite concerning aspects of President Moon's amendment bill, particularly regarding the president's appointment powers. Firstly, compared to the current constitution, there are no significant changes in the provisions related to the control of so-called power institutions. For instance, the amendment bill largely preserves the president's initiative in the appointment and dismissal of the Prosecutor General and other public officials stipulated by law, effectively guaranteeing the president a nearly similar level of exclusive control over the heads of the four major power institutions: the Prosecutor General, the Director of the National Intelligence Service, the Commissioner General of the National Police Agency, and the Commissioner of the National Tax Service. While the Board of Audit and Inspection (BAI) expresses an intention to make it an independent institution, considering the method of appointing the BAI Chairperson and the composition of audit committee members, there is some doubt as to how autonomously the BAI can perform its duties from the president. This amendment bill even allows the concurrent holding of ministerial positions by National Assembly members, which has been continuously criticized as a mechanism for presidential control over the National Assembly. Therefore, regarding the president's appointment powers, the only notable intention, if anything, is to slightly strengthen the guarantees for judicial independence compared to the past.

Ultimately, viewed in this context, there is no significant change to the structural elements of the current governance system that have allowed the president to wield 'imperial' power during their term while inducing severe 'lame duck' syndrome at the end of the term. As long as the appointment powers for power institutions remain concentrated in the hands of the president, the past vicious cycle of loyalty and defection among the members of these institutions will continue. Above all, this raises serious concerns about whether these institutions can strictly maintain political neutrality during the president's first term in the new environment where presidential re-election is possible.

Therefore, contrary to the prime ministerial nomination rights, transferring the nomination rights for the heads of three power institutions, excluding the Auditor-General and the Director of the National Intelligence Service, to the National Assembly is something that could be sufficiently considered during the process of reaching a consensus bill in the National Assembly. Of course, since the three institutions—the prosecution, police, and national tax service—are all subordinate agencies of the executive branch, it may be formally inappropriate for the National Assembly to exercise nomination rights for their heads. However, by adopting a system where the president appoints these heads based on nominations from the National Assembly, with the prerequisite of bipartisan agreement, it could be much more effective in ensuring the substantive neutrality of these power institutions while circumventing such controversies. This is also the best measure to minimize the extremely distorted pattern of 'imperial' rule by the president followed by 'lame duck' syndrome at the end of the term, which has been continuously observed under the presidential system.

Finally, assuming that a 'four-year presidential term with re-election' is realized, as in President Moon's amendment bill, it is imperative to significantly strengthen the status and functions of the National Assembly to enhance the completeness of the governance structure under the new constitution. This is because the presidential system, which aims for the separation of powers by ensuring that the executive and legislative branches are independently constituted and cannot affect each other's existence, must be designed with a very balanced approach to enable the Assembly to be responsible for legislation and effectively check the executive branch. In other words, the stronger the presidential system, the stronger the legislature must be. Therefore, for instance, if the government is to continue to propose bills as in President Moon's amendment bill, there seems to be a need for greater caution regarding the conditions for doing so. Furthermore, beyond just the nomination rights for the Chairperson of the Board of Audit and Inspection, the transfer of the BAI to the National Assembly should be reconsidered from scratch.

Of course, the powers granted to our National Assembly are not necessarily small. The problem is that the human and material resources are still very scarce to effectively lead legislation and check the oversized executive branch. The fact that the National Assembly cannot propose bills superior to those of the government, and that it has primarily focused on 'obstruction' rather than effective oversight and supervision of the executive branch, is largely due to this mismatch between authority and resources. Nevertheless, in the reality of South Korea, where anti-parliamentary sentiment is particularly strong, it is by no means easy to grant additional human and material resources to the National Assembly, including an increase in the number of parliamentary seats. The post-reform tasks are by no means simple, just as constitutional reform is difficult to achieve.

The process of constitutional reform has just begun. Whether this arduous process will lead to the birth of a new constitution, or whether it will be halted at some stage for some reason, is something no one knows yet. However, one thing is clear: President Moon must continue to persuade the public of the necessity of constitutional reform not only during the period until the national referendum but also thereafter, and on the other hand, he must constantly encourage consensus or the formation of a consensus bill within the National Assembly. ■

Author

Lee Sun-wooProfessor of Political Science and International Relations at Chonbuk National University. He holds a Ph.D. in Political Science from the University of Glasgow, UK. His main research areas include comparative government systems, Russian politics, and East Asian international relations. His major works include "Prosecutors and Presidents in New Democracies" (2017), "The Institutional Basis of the Medvedev-Putin Dyarchy" (2015), and "Institutional Consistency Regarding Forms of Government and the Desirable Direction of Constitutional Reform in Korea" (2015), among others.

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