Some Questions Regarding Free Democratic Basic Order

This article is intended to raise a few questions regarding the term ‘free democratic basic order’ within Korea’s constitutional order: how it is understood and mobilized in different contexts. It will be shown that there is much confusion on the part of the Korean Constitutional Court as well as constitutional scholars. First, there is continuing confusion and controversy over its political orientation, whether it was introduced into the Korean constitution with the intention of masking authoritarian rule based on virulent anticommunist ideology. This stems from the fact that the term was first inserted into the constitution’s text by the infamous Yushin Constitution of 1972, although a similar term was already present since 1960. Secondly, it is unclear whether the term is an indication that Korea’s constitutional order is based on the idea of ‘militant democracy.’ While the Constitutional Court seems to say it is, a careful comparison of its decisions with the German idea and practice of militant democracy suggests that the Korean court is using free democratic basic order in a very vague and imprecise manner. Third, there is confusion over whether free democratic basic order refers to the very minimum essential features of the constitutional order or the ultimate value and goal which the entire legal system, as well as the citizens, is expected to strive after. It will be suggested that this is ultimately due to the mistake of equating free democratic basic order with the comprehensive ideal of liberal democracy.