South Korea's Progressive Gender Rights in Constitutional Development

Gender and Constitutional Rights Review: South Korea s Dynamic Development Gender and Constitutionalism Jan 2019 HKU Yoon Jin Shin

Gender and Constitutional Review in South Korea The Constitutional Court of Korea Began in Sep 1988, created by 1987 Constitution Symbolized the era of Democracy and Constitutionalism 34,803/35,756; 1,679 unconstitutional, 178/181(month) Individual Claims are accessible and actively made Gender Issues are vibrantly contested Patriarchal tradition & Nationalist sentiment are deep and prevalent Constitutionalism evolved by mobilized individuals and the ambitious Court, in a still conservative society 2

Constitutional Text Art. 11 para. 1 All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social or cultural life on account of sex, religion or social status. Art. 32, para. 4 Special protection shall be accorded to working women, and they shall not be subject to unjust discrimination in terms of employment, wages and working conditions Art. 34, para. 3 The State shall endeavor to promote the welfare and rights of women. Art. 36, para.2 The State shall endeavor to protect mothers. 3

1. Political Equality Women s universal suffrage since 1948 Constitutional Rights and Principles vs Public Interests Gender Equality Right to Public Service vs Support for veterans Constitutional Court Decision Issue Extra Point System for Veterans Unconstitutional (1999) Statutory Quotas for female candidates National Assembly elections Gender Equality Right to Public Service Not challenged 4

2. Sexual Binary and Heteronormativity Constitutional Rights and Principles vs Public Interests Rights to Sexual Self-D etermination, Privacy, Bodily Freedom, Equality vs Military Discipline, National Security Gender Equality, Rights of Sexual Minorities Constitutional Court Decision Issue Military Sodomy Law Constitutional (2016, 2011, 2002) Challenged to National Human Rights Commission Resident/Family Registration: Male( 1 ) or Female( 2 ) Right to Family, Equality Pending in Administrative Court Same-Sex Marriage 5

3. Reproductive Rights Constitutional Rights and Principles vs Public Interests Constitutional Court Decision Issue Women s Rights to Self -Determination vs Right to life of a fetus Constitutional (2012) Currently Pending Abortion Right to Occupation , Right to Information vs Right to life of a (female) fetus Fetus Sex Identification Unconstitutional (2008) 6

4. Family Relations Constitutional Rights and Principles vs Public Interests Gender Equality, Individual Dignity (Art 36) vs Culture & Tradition (Art 9) Gender Equality, Individual Dignity vs Culture & Tradition Constitutional Court Decision Issue Household Head System Unconstitutional (2005) Paternal Family Name Principle in Civil Code Unconstitutional (2005) Nationality Act patriarchal jus sanguinis Gender Equality, Individual Dignity vs Culture & Tradition Unconstitutional (2000) 7

5. Sexuality and Agency Constitutional Rights and Principles vs Public Interests Right to Occupation Self-Determination vs Decent Sexual Culture & Morality Men s Rights to Sexual Self-Determina tion and Privacy vs Women s Chastity Rights to Sexual Self- Determination and Privacy vs Family and Women Constitutional Court Decision Issue Criminalizing Comme rcial Sex Work/ Women in Prostitution Constitutional (2016) Criminalizing Sexual Intercourse under a False Promise of Marriage Unconstitutional (2009) Criminalizing Adultery Unconstitutional (2015) 8

6. Socio-Economic Rights Constitutional Rights and Principles vs Public Interests Constitutional Court Decision Issue Gender Equality vs Rational basis for discrimination Male-Only Duty for Military Service Constitutional (2014) National Health Insurance Plan & Sex Reassignment Surgery Not challenged yet Right to Health National Pension Pla n requiring Widowed Males to be over 60 Gender Equality vs Rational basis for discrimination Constitutional (2008) Amended 9

7. Dialogue between National and International Human Rights Constitution Art. 6 para. 1: Treaties duly concluded and promul gated under the Constitution and the generally recognized rule s of international law shall have the same effect as the domestic laws of the Republic of Korea. A substantive review standard A Reference for constitutional interpretation Comfort Women Case (2011) Cited the 1996 report by Special Rapporteur on Violence ag ainst Women, Radhika Coomaraswamy and the 1998 report by Gay J. McDougall, Special Rapporteur on systematic rap e, sexual slavery and slavery-like practices during armed con flict (on the issue of comfort women in Korea and Japan) Found South Korean government s inaction unconstitutional Skeptical view? 10

8. Constitutional Responses to Intersectionality Marriage Migration Female Migrant Workers Refugee Flows: 500 Yemeni Refugees in Jeju Island hostility against and fear of male Muslims Patriarchy, Nationalism, Feminism The role of the Constitutional Court for more inclusi ve equality and human rights while the society ten ds to be much more conservative in the context of race and migration Cf. South Korean gay male conscientious objector refugees in Australia 11

Conclusion: Gender and Constitutionalism Constitutional Rights Review as an effective venue for dynamic interactions between: Diverse voices and demands in society Tradition/Culture/Morality and Constitutional Rights/Principle Gender is the key area for these interactions with tensions and conflicts as well as empowerment and emancipation More progressive in women s rights and equality More conservative in sexual minorities rights, issues with national security/nationalism and sexual morality Contextualize and develop the meaning and practice of Constitutionalism, with Universality and Particularity integrated in the rights contestation and adjudication process Deepening Comparative Constitutional Law 12