Gender and Constitutional Rights Review: South Korea’s Dynamic Development

1. Gender and Constitutional Rights Review:South Korea’s Dynamic Development Gender and ConstitutionalismJan 2019HKU Yoon Jin Shin

2. 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

3. Constitutional Text Art. 11 para. 1 All citizens shall be equalbefore 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.

4. 1. Political Equality • Women’s universal suffrage since 1948

5. 2. Sexual Binary and Heteronormativity

6. 3. Reproductive Rights

7. 4. Family Relations

8. 5. Sexuality and Agency

9. 6. Socio-Economic Rights

10. 7. Dialogue between National and International Human Rights • Constitution Art. 6 para. 1: “Treaties duly concluded and promulgated under the Constitution and the generally recognized rules 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 against Women, Radhika Coomaraswamy and the 1998 report by Gay J. McDougall, Special Rapporteur on systematic rape, sexual slavery and slavery-like practices during armed conflict (on the issue of “comfort women” in Korea and Japan) • Found South Korean government’s inaction unconstitutional • Skeptical view?

11. 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 inclusive equality and human rights while the society tends to be much more conservative in the context of race and migration • Cf. South Korean gay male conscientious objector refugees in Australia

12. 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