Rule of Law: The Next Step for South Korea’s Fledgling Democracy

There are a number of reasons that the recent — presidential elections in the Republic of Korea should hearten proponents of Western-style democratic rule, both in Korea and abroad.

To begin with, South Korea experienced and withstood an electoral campaign that was, criticisms notwithstanding, both fiercely contested and genuinely competitive. Indeed, the heated and at times savage rhetoric of some opposition spokesmen was itself inadvertent testimony to an openness in the South Korean system these same speakers often wished to deny.

Second, while almost all competitive mass elections are marred by at least some irregularities, disinterested parties have not questioned the overall integrity of Korea’s election results. Neither the vote count nor government candidate Roh Tae Woo’s two million vote victory, for example, have to date been challenged in the foreign press or by visiting independent election watchers. Such groups are not famous for enthusiastic and reflexive support of the Seoul government.

Third, the election, and the events it has set in motion, seem to promise a decisive break with some of the more troubling aspects of Korea’s political past. President-elect Roh’s inauguration represents the first peaceful transfer of internal power in the Republic’s forty year history — indeed, the first on the peninsula since the days of the Yi emperors in the nineteenth century. If the December 16 presidential election can be seen as something approaching a fair contest, which the evidence increasingly seems to suggest, it would be the first in the entire history of the Korean people.

Salutary as all this may be, there is more to liberal democracy, as the term is understood by those who enjoy it, than plebiscites alone. If South Korea is to continue further on the path of “democratization,” the nation’s new leadership must come to terms with an issue that has eluded all previous South Korean regimes: rule of law.

In a very real sense, South Korea is to this day a lawless society. To be sure, the Republic of Korea has a constitution. Legal codes do, of course, exist in Korea. Unobjectionable, reasonable, and even wise laws may be found on the books. But the gap between these laws and their general application is profound. If one has power, political influence, and personal connections, one can typically expect to be exempted from the requirements of the formal law. Without these things, one must be resigned to living without the protections that law is supposed to guarantee.

The problem is readily apparent in the very routine of daily life in Korea. Anyone who has spent much time in that country, for example, can attest that traffic accidents are an everyday occurrence in the major cities. And anyone who has paid attention to such accidents will recall how they are resolved. If a chauffeured car and a small car collide, the driver of the small car is virtually always the one charged and arrested — entirely irrespective of the circumstances of the accident. The deference toward the mighty and contempt for the humble evident in such incidents is but a metaphor for a broader tendency in the exercise of official authority in South Korea.

It is not only the humble, however, who can be made to suffer in Korea through capricious and personalized abuse of legal power. In 1983, for example, Dow Chemical closed a plant it had only recently completed in Korea, writing off a loss unofficially placed at over $100 million in the process. The Dow operation was, in fact, the single largest direct American investment in Korea at the time. Going by the books, the plant should have been a productive and profitable investment. In practice, the plant’s operation was sabotaged by a series of government-related “problems.” To take but one example, the plant was denied access to purchase local electric power — entirely in contravention of written Korean law, to say nothing of Dow’s operating agreement. While the reasons for Dow’s difficulties may have been diverse, it was rumored at the time that company executives had unwittingly gotten into a vendetta with some prominent Korean officials, who took it upon themselves to ruin the Dow operation. One may consider what this approach to administration might mean for ordinary Koreans — persons without foreign passports and unseizable overseas assets.

The personalized, vindictive, and even predatory exercise of authority in South Korea has had a number of most unfortunate consequences for the country and its people.

For one thing, it has unnecessarily undercut public confidence in, and respect for, the nation’s economic achievements. Over the past generation, as is well known, South Korea has undergone a dramatic economic transformation. Real per capita income, for example, has risen more than six-fold. Despite this remarkable record, there is considerable dissatisfaction among Koreans about the nature of their “economic miracle.” Although a number of economic measures suggest South Korea’s income distribution to be one of the most even in the Third World, polls indicate that South Koreans themselves view their country’s income distribution as highly unequal. Among the Korean public, the perception has spread that personal wealth testifies perhaps not so much to merit and hard work as to the successful milking of government connections. In part, this perception may reflect the very real benefits that many ex-officials have reaped from land deals (with the parcels in question being bought or sold by the government, sometimes at surprising prices). The perception affects long-time private sector entrepreneurs as well, insofar as bank credit was until quite recently allocated to businesses and conglomerates on the basis of government decision, not banker evaluation. As for ordinary people, satisfaction with their own financial progress is tempered by the knowledge that, in the absence of inviolable protections of property and person, all gains may be revoked arbitrarily, and thus in some sense remain provisional.

The lawlessness of government has also helped to forestall the emergence of an encompassing political community in South Korea. From the days of Yi Dynasty palace intrigue to the present, Korean politics has been a particularly factionalized and personalized affair. Factionalism is in fact still so pronounced in South Korea that one cannot meaningfully speak of “party politics” in that country: what pass today for “parties” are actually something like temporary recombinations of figures and their followings under banners that are not meant to outlive their usefulness to particular candidates. In this tribalized environment, such notions as “loyal opposition” and “rights of the minority” have little resonance. To more than a few participants, in fact, they seem to be utterly incomprehensible. The only truly legitimate political activity, in the view of many in Korea, is the pursuit or exercise of power by and for one’s own group. Absent the imposition by government of impersonal and impartial authority, the chances seem slim that South Korea’s political factions might coalesce into a more cohesive whole — much less a community in the liberal Western sense.

But perhaps the greatest cost of lawlessness in South Korea is to the country’s own security. As is well known, a state of war still exists between the Republic of Korea and the “Democratic” People’s Republic to the North. Almost a million-and-a-half men face each other across the demarcation line. An uneasy cease-fire has been maintained for the past thirty-five years. The Communist dictatorship in the North is still actively interested in liquidating the government in the South. But the balance of power on the peninsula has changed since Pyongyang’s surprise attack in 1950. South Korea’s economic might and its technological capabilities have increased vastly in the interim. Moreover, since the early 1970s both China and the USSR have been informing Washington that their intentions are to stay out of any direct confrontation between North Korean and U.S. forces in the peninsula. Pyongyang can no longer realistically expect victory against the South in a frontal assault, even with the element of surprise on its side. But North Korea can still entertain the hope that it will be able to capture the South at some future date. In this vision, North Korea simply walks in to pick up the pieces from a government in Seoul that has collapsed into chaos, and establishes power over a society that is paralyzed by turmoil and confusion.

There is reason to believe that such a view actively informs current North Korean strategy. The infamous “Rangoon bombing” incident of October 1983, would seem to attest to this. It is by now well known that North Korean commandos attempted to assassinate President Chun Doo Hwan at a shrine in Burma, and actually succeeded in murdering 17 members of his entourage, including a number of South Korean cabinet ministers and senior officials. What is perhaps less clearly remembered is that these commandos were disguised as South Korean dissidents. It is also well to recall that North Korean frogmen were apprehended landing in the South just after the Rangoon incident. According to reports, their orders allegedly included the bombing of City Hall in Pusan, South Korea’s second largest city. Through such activities, Pyongyang apparently intended to simulate — and perhaps to stimulate — a domestic uprising. So long as political life in the Republic of Korea lacks cohesion and stability, the Communist rulers of the North may continue to entertain ambitions of seizing power over the South through deception and force.

If the importance of the rule of law has to date been obscure to the South Korean figures who might be in a position to promote it, one must concede that it has been less than central to the public and private agenda of the United States in that region. Perhaps more than with any other Cold War ally, America retains in Korea both good will and influence. But America — and Americans — have scarcely used these quantities to encourage respect for legality and civil order in Korea.

For all the attention that the U.S. Congress and State Department episodically train upon Korea, their vision has never extended to the question of securing individual rights in that country. Indeed, the State Department’s annual Country Reports on human rights practices — mandated by and prepared for Congress — makes no mention, in its section on Korea or elsewhere, of such rues as protection of private property, due process, or equality before the law.

Private U.S. human rights groups, for their part, have heaped criticism on governments in Seoul for years for a variety of cited abuses, yet they have had little to say about safeguarding the individual against the state’s arbitrary intrusion into the private sphere. Perhaps for these groups the notion of human rights suggests something more lofty and ambitious than what might be delivered through the mundane machinery of civil law.

American corporations have traditionally been a force for social enlightenment and social reform in many of the countries where they operate. U.S. business interests in Korea are well aware of the divide between written or formal law and actual government practices in the country, and have sometimes complained about this bitterly. Unfortunately, some American concerns have shown that they are willing to sacrifice principle to expedience; that they would be only too happy to fall silent about the systematic abuse of civil and property law in Korea if they could be included within the select circle that benefits from such preferential, albeit illegal, treatment.

The Republic of Korea has yet to make the transition from a government of men to a government of laws. It is likely to be a difficult transition — even more difficult, in certain respects, than the path to competitive mass balloting has been. The stakes are hardly any lower. It is perhaps not too much to suggest that the nature of peace in Northeast Asia will be decisively affected by the success of this transition. It is in the American interest — and in consonance with American philosophy about government and man — to do more than merely wish Korea well in the trial that awaits it.

  • Nicholas N. Eberstadt

    Nicholas Eberstadt is a political economist who holds the Henry Wendt Chair in Political Economy at the American Enterprise Institute (AEI). He is also a Senior Adviser to the National Bureau of Asian Research (NBR), a member of the visiting committee at the Harvard School of Public Health, and a member of the Global Leadership Council at the World Economic Forum. Eberstadt has written many books and articles on political and economic issues, including demographics and the political situation of North Korea. He has consulted for governmental and international organizations, the U.S. Census Bureau, U.S. State Department, USAID, and World Bank, and has often been invited to offer expert testimony before Congress.

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