I. SOCIAL MOVEMENTS IN FORMAL AND INFORMAL CONSTITUTIONAL CHANGE
Japan's ‘Movement to Save Article 9’, South Korea's ‘Candlelight Movement’, and Taiwan's ‘Student Sunflower Movement’ are notable recent social movements which mobilize for constitutional change in these East Asian jurisdictions. With a few exceptions,Footnote 1 however, social movements have received scant attention among scholars of comparative constitutional law in Asia. The present article considers whether the academic inquiry of comparative constitutionalismFootnote 2 in Japan, South Korea, and Taiwan may be further developed by a full consideration of the relevance of social movements.
This article adopts a comparative approach. The ‘controlled comparison’ follows the ‘most similar cases’ principle in small-N comparative constitutional law.Footnote 3 Japan, South Korea, and Taiwan have three similarities. First, they are some of the few jurisdictions in Asia where modern constitutionalism has been relatively well established.Footnote 4 These jurisdictions share these features of modern constitutionalism: free elections operating as the platform for fair political competition for political power; the existence of healthy legal systems capable of protecting human rights and civil liberties; effective rule of law that guarantees the capacity of legal enforcement and largely frees administrative authorities from corruption; well-established separation of powers and judicial independence; judicial review of the constitutionality and legality of legislative and executive actions; and the flourishing of freedom of the press and civil society.Footnote 5 Second, the modern history of these three East Asian polities is replete with social movements.Footnote 6 This provides a practical foundation for ruminating about the possible relations between social movements and the creation and consolidation of constitutional government. Third, these three societies share a similar cultural background informed by Confucian values.Footnote 7 More specifically, the Confucian legacy still informs the practice of modern constitutionalism in East Asia.Footnote 8 Despite these similarities, the practices of constitutionalism and social movements in Japan, South Korea, and Taiwan have considerable differences, which create the foundation for a meaningful comparative inquiry.
The mode of comparative inquiry is qualitative research that aims to advance comparative constitutional knowledge. This mode of research attempts to explain how, in what forms, and under what conditions social movements engage in constitutional processes. There are two consequences of this approach. First, the present study does not pursue normative questions (eg how constitutionalism should be promoted). Second, this comparative inquiry necessarily makes the study an interdisciplinary project that will combine insights from comparative constitutional law and social science. This is connected to a broader trend in which prominent constitutional comparatists call for bridging the gap between the social sciences and comparative constitutional law.Footnote 9 More specifically, this study integrates social movement theories in social science into comparative constitutional law.
This mode of inquiry involves the construction of a theoretical framework and positive exploration. Due to limited space, this article focuses more on constructing a theoretical framework and offers some level of descriptive and analytical exploration, which provides the base for subsequent in-depth exploration that would require empirical work. Integrating social movement theories into comparative constitutional law, I argue that a more nuanced positive account of the creation and consolidation of constitutionalism in Japan, South Korea, and Taiwan must be situated within the engagement of social movements in discursive venues for formal and informal constitutional change. These cases have implications for understanding the struggle for constitutionalism in other parts of Asia.
My argument proceeds in four parts. Part I considers the conceptual and theoretical limits in the existing scholarship on comparative constitutionalism in East Asia, in the sense that it has relatively understudied social movements. Part II develops a theoretical framework. Within that base, Part III provides a descriptive and analytical exploration of the engagement of social movements in constitutional change in the three jurisdictions. Part IV concludes with some reflections on future research.
II. SOCIAL MOVEMENTS AND COMPARATIVE CONSTITUTIONALISM
A. Social Movements and Constitutional Change
Studying the relationship between social movements and constitutional law is not new, but comparative inquiry in this area is scant.Footnote 10 Scholars have focused on the effect of social movements on domestic constitutional law, particularly in the United States. This is understandable, given the richness of social movements in this country and their involvement in the development of constitutional law, which leads to skepticism about the judicial role in constitutional change.Footnote 11 Jack Balkin, Reva Siegel, William Eskridge, and Mark Tushnet have offered extensive accounts of the role of social movements in the development of American constitutional law.Footnote 12
For example, to Eskridge, judicial review is the mechanism through which constitutional changes occur rather than its driving force.Footnote 13 He argues that ‘[m]ost twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements (“IBSMs”) of the twentieth century.’Footnote 14 He meticulously documents how the civil rights movement, the women's rights movement, and the gay rights movement sought to change constitutional norms through constitutional litigation. Eskridge demonstrates that the Supreme Court adopted (albeit not uncritically) many constitutional transformations mobilized by social movement actors through constitutional litigation, including ‘selective incorporation of criminal procedure rules in the Bill of Rights into the Due Process Clause’, ‘the due process right of sexual privacy’, and ‘the notion that the death penalty constitutes cruel and unusual punishment’.Footnote 15
Like Eskridge, Siegel underlines the importance of popular mobilization in the development of constitutional law in the United States. In the case of feminist movements, she argues that a mobilized citizenry, through its relationship with courts, has played an important role in the continuous construction of constitutional meaning. In particular, Siegel stresses the role of the constitutional text as ‘the site of understandings and practices that authorize, encourage, and empower ordinary citizens to make claims on the Constitution's meaning’.Footnote 16
The role of social mobilization in driving constitutional change is central to the work of Balkin, especially in his recent disquisition Constitutional Redemption.Footnote 17 NeJaime helps summarize the argument in this work in these words:
Individuals often make claims on the Constitution by organizing into social movements that construct, develop, and disseminate constitutional visions. These social movements are vital participants in our protestant constitutional culture. If successful, these movements influence public opinion in their favor, changing the culture with which constitutional law interacts. Courts and other institutions absorb the resultant cultural shifts. At the same time, movements convince political parties to support their views, and those parties may ultimately appoint judges with similar outlooks.Footnote 18
The American constitutional theories above have implications for comparative constitutional law generally. Even in the United States where there is a strong and effective judicial review system, courts are not the principal drivers of constitutional change. Judicial review is not essential for constitutionalism. Keith E Whittington argues that courts cannot stand alone to enforce constitutional rules because courts do not have force unless ‘powerful political actors’ accept their judicial voice.Footnote 19 In a similar vein, Daryl J Levinson opines that ‘the success of constitutional law, in both its constitutive and constraining roles, depends on the willingness and ability of powerful social and political actors to make sustainable commitments to abiding by and upholding constitutional rules and institutions’.Footnote 20
The judicial mechanism is only one of many diverse mechanisms through which constitutional change happens. Constitutional change can also occur through political and social mechanisms, and can be driven by political and social forces. Therefore, in addition to judicial review, comparative constitutional law inquiry should take into account the role played by non-judicial factors in constitutional change, including social movement actors.Footnote 21 Social movement actors may deploy political fora to mobilize for formal constitutional change.
B. Social Movements: The Missing Point in Comparative Constitutionalism in Asia
In recent years, comparative constitutionalism in Asia has developed considerably. Unfortunately, the engagement of social movements qua social actors in the constitutional processes in the region has been understudied, mainly because existing scholarship has been dominated by institutional approaches, which has led to the focus on institutional actors. One can identify four different approaches in comparative constitutionalism in Asia: judicial institutionalism, macro-historic institutionalism, constitutional ethnography, and the conceptual/philosophical approach. Among these, institutional approaches have been dominant.
Judicial institutionalism focuses on the domestic and transnational contexts of the creation and operation of judicial review in Asia.Footnote 22 This approach reflects the reality that, except in Japan, the establishment of constitutional orders in Asia has been accompanied by the emergence of functional constitutional courts.Footnote 23 These works are implicitly or explicitly premised on fundamental assumptions of judicial or legal constitutionalism, namely that the bill of rights is conceived as establishing substantive limits on public power, and that courts are conceived as the best guardians of these constitutional limits.Footnote 24
In fact, as Tom Ginsburg argues, constitutional courts in Asia are consolidators, rather than creators, of constitutionalism.Footnote 25 In addition, the rights provisions in the constitution are normally general and abstract, and even ambiguous, and thus potentially subject to reasonable disagreement among different actors, including legal and political actors, and actors of social movements. Moreover, empirically, as indicated below, social movements have also been involved in the process of judicial review. Movement actors may employ constitutional litigation to mobilize for constitutional change. Unfortunately, judicial accounts of Asian constitutional law have largely neglected the engagement of social movements in the judicial review process.
Another approach in Asian comparative constitutionalism is macro-historic institutionalism.Footnote 26 This approach does not focus on the judicial institution but broadly examines the historical evolution of constitution-making and different types of formal constitutional institutions (structural institutions and bills of rights) in Asia.Footnote 27 From this perspective, Albert Chen argues that constitutionalism in Japan, South Korea, and Taiwan share common features with western liberal constitutionalism.Footnote 28 Macro-historic institutionalist accounts have provided a useful general picture of constitutional development in Asia. However, like judicial institutionalism, macro-historic institutionalism is less concerned with non-institutional participants, such as social movement actors, in constitutional processes.
The third approach is what Kim Lane Scheppele calls ‘constitutional ethnography’. In contrast to the institutionalist approaches, constitutional ethnography:
does not ask about the big correlations between the specifics of constitutional design and the effectiveness of specific institutions but instead looks to the logics of particular contexts as a way of illuminating complex interrelationships among political, legal, historical, social, economic, and cultural elements.Footnote 29
Constitutional ethnography has been applied to ‘re-examine’ the social and political circumstances (war situation, decolonization, national identity, and nationalism) of constitution-making in Japan, South Korea, and Taiwan.Footnote 30 In contrast to the universalist claim underpinning macro-institutionalist accounts, constitutional ethnographic accounts have resulted in a contextualist claim about the ‘distinctive features’ of ‘East Asian constitutionalism’ determined by the region's distinctive political, historical, social, economic, and cultural context.Footnote 31 The establishment of constitutionalism in Japan, South Korea, and Taiwan is argued as a top-down instrumental process:
In this context, the actual constitutionalization process becomes more of an ancillary, rather than the main project serving a broader goal. Constitutions rarely start out as a people's self-conscious effort to demand their own rights or to constrain state power. Instead, they tend to be elite creations designed to modernize ancient states.Footnote 32
Ethnographic works have contributed to a fuller picture of constitutionalism in Asia. This literature suggests that constitutionalism cannot emerge in the region independently from its political, historical, social, economic, and cultural milieu. Theoretically, ethnographic accounts of East Asian constitutionalism are connected to more general literature that account for the social and political foundations of constitutions and constitutional institutions.Footnote 33 Yet, while ethnographic works are interested in the social and political foundations of constitutionalism in East Asia, they have not yet substantively accounted for the relevance of social movements. The under-consideration of the involvement of social movements as the bottom actors in constitutional processes may create the debatable claim that the establishment of constitutionalism in East Asia is an instrumentalist, top-down process.
The final approach is conceptual or philosophical.Footnote 34 To illustrate, Chaihark Hahm and Sung Ho Kim focus on a positivist conceptualization of the constitutive foundation of ‘we the people’ in democratic constitution-making in postwar Japan and South Korea.Footnote 35 Other constitutional and political theorists, such as Jiang Qing and Sungmoon Kim, are more concerned with normative philosophical theorization about the idealist type of constitutional model in Asia, such as the ‘Confucian constitutional order’Footnote 36 for China or the ‘Public Reason Confucian constitutionalism’ for the future of East Asia democracies, particularly South Korea.Footnote 37 These conceptual or philosophical works indicate the possible contribution of East Asia to comparative constitutional theory. Yet, understandably, these conceptual or philosophical accounts are less concerned with the actual role of the social drivers, such as social movements. The account of making ‘we the people’ in East Asian constitutional foundings underestimate the role of the ‘mobilizing people’ as constitutive elements of the constitutional subject. In the same vein, while philosophical constitutional inquiry into public reason is concerned with the space for public debate, the participation of social movement actors in public constitutional reasoning has been largely under-considered.
III. TOWARD A THEORETICAL FRAMEWORK
An inquiry into the relationship between social movements and constitutionalism requires integrating social movement theories into comparative constitutionalism.Footnote 38 As one scholar of social movements notes:
Notwithstanding the ever-expanding breadth and volume of the social movement literature, the fundamental goal of this entire scholarly enterprise is, and has always been, to produce general knowledge on how, in what forms, and under what conditions social movements become a force for social and political change.Footnote 39
In the same vein, to situate constitutionalism in East Asia within the engagement of social movements is to consider ‘how, in what forms, and under what conditions’Footnote 40 social movements mobilize for constitutional change.
The nature of a social movement should be clarified first. In social science, a ‘social movement’ is defined as ‘a network of informal interactions between a plurality of individuals, groups and/or organizations, engaged in a political or cultural conflict, on the basis of a shared collective identity.’Footnote 41 Charles Tilly defines three elements of social movements, namely: campaign, or ‘a sustained, organized public effort making collective claims of target authorities’; repertoire, or ‘employment of combinations from among the following forms of political actions: creation of special-purpose associations and coalitions, public meetings, solemn processions, vigils, rallies, demonstrations, petition drives, statements to and in public media, and pamphleteering’; and WUNC displays, or ‘participants' concerted public representation of worthiness, unity, numbers, and commitments on the part of themselves and/or their constituencies’.Footnote 42
The modern history of Japan, South Korea, and Taiwan has been replete with social movements for constitutional change. We can call this phenomenon ‘social movement constitutional mobilization’. Social movement actors may deploy many forms of mobilization. Among them is the constitutional form. ‘Social movement constitutional mobilization’ refers to the process in which social movement actors directly employ constitutional ideas, symbols, language, discourse, processes, and institutions to mobilize for constitutional change. Constitutional mobilization is used by different social actors: social movement actors and other activists. Social movement constitutional mobilization is the strongest form of constitutional mobilization, differentiated from other forms of constitutional mobilization in that the former is more confrontational, organizational, and aggressive, while the latter may be more dialogical, loose, and amicable.
The targets of social movement constitutional mobilization are constitutional changes: changes to fundamental aspects of the polity, such as the overall institutional structure and fundamental rights. In the three East Asian polities, these targets include both formal and informal constitutional changes. Social movements can mobilize for formal constitutional amendments during the process of incremental creation or consolidation of constitutionalism. Social movements can also mobilize for informal or cultural constitutional change, or change in the political or judicial interpretation of constitutional meanings.
To explain how, in what forms, and under what conditions social movements mobilize for constitutional change, three social movement theories are relevant: political opportunity, framing, and resource mobilization theories.Footnote 43 The political opportunity theory focuses on the political context in which social actors advance claims, mobilize supporters, and affect influence.Footnote 44 The framing theory involves how mobilizing actors ‘locate, perceive, identify and label occurrences within their life space and the world at large’.Footnote 45 The resource theory explains social mobilization as institutionalized actions and mobilizing actors, and rational actors.Footnote 46 These theories can be contextualized within comparative constitutional inquiry, which can lead to the conceptualization of constitutional opportunity, constitutional framing, and constitutional resources. Within the social movement context, constitutional opportunity refers to the environment and processes that enable social movement actors to mobilize for constitutional change. Constitutional framing concerns the way movement actors frame their constitutional arguments. Constitutional resources refer to state actors whom movement actors approach to advocate for their constitutional demands.Footnote 47
The concept of constitutional opportunity is relevant for understanding this question: under what conditions do social movements engage in the constitutional processes in the three East Asian polities? In these East Asian societies, constitutional opportunities are discursive rather than limited to judicial opportunities. The processes of constitutional amendment and constitutional review provide constitutional opportunities for social movement actors to launch their constitutional mobilization. Movement actors may seize these processes as opportunities and initiate these processes by which they create opportunities.
The two concepts of constitutional framing and constitutional resources are instrumental to understanding this question: how do social movements mobilize for constitutional change? In terms of constitutional framing, in these East Asian jurisdictions, both the existing constitutional text and the general language of constitutionalism can offer discursive symbols for movement actors to frame their arguments. Regarding resources, in these East Asian jurisdictions, movement actors mobilize for elite support with stronger efforts and aspirations, especially in the institutional context of colonial and authoritarian regimes. Another feature is that, in East Asia, court-based tactics would not be always appropriate. Movement actors may turn to political actors rather than merely courts to disseminate constitutional visions and gain support.
IV. CASE STUDIES
A. Japan
1. Background of social movements
The 2011 Fukushima Daiichi nuclear disaster triggered a new moment in social movements in Japan.Footnote 48 Four decades earlier, large-scale confrontational social movements were relatively absent in Japan, which was arguably due to ‘group-orientation’ and ‘social harmony’.Footnote 49 Yet, between the mid-1970s and 2010s, scholars have also documented ‘invisible’ social movements such as labour movements and peace movements.Footnote 50
The Fukushima nuclear catastrophe radically changed the picture of social movements in Japan. It not only cast doubts on ‘the safety of nuclear power’ and the government's capacity for ‘crisis management’, ‘but also led to a more critical questioning of the economic and political establishment’.Footnote 51 The disaster triggered a wave of visible and confrontational social movements. As two scholars observed:
In the years since 2011, we have witnessed an unprecedented resurgence in social and protest movements and a new civic engagement; immediately after the Tohoku triple disaster unfolded in March 2011, a wave of support swept through Japan, new citizen groups were formed, and large-scale anti-nuclear demonstrations began to emerge … These responses were multifaceted and involved various issues transcending the immediate nuclear danger.Footnote 52
2. Social movement constitutional mobilization
Social movement constitutional mobilization in Japan focused its activism on Article 9 of the Constitution of Japan 1947 (1947 Japanese Constitution). Enacted after World War II, the provision has a strong commitment to peace:
Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.
In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.Footnote 53
However, the meaning of this provision has been extended over time through the government's constitutional interpretations.Footnote 54
Article 9 was already one of the central concerns in Japan's ‘contested constitutionalism’.Footnote 55 In the new wave of social movements after 2011, Article 9 has become the target of social movements. Notably, a specific movement, called the Movement to Save Article 9 (Goken Undō), is devoted to protecting the pacifist constitutional commitments.Footnote 56 While the movement has its roots in the ‘invisible’ peace movements prior to 2011, it was revitalized after the Fukushima disaster.Footnote 57 The activities of the Article 9 Association are an example. As Daiki Shibuichi explained:
Following the earthquake, tsunami and nuclear disaster of March 2011, the [Article 9] Association paid keen attention to the anti-nuclear energy agenda. It dwelt on that topic for the rest of 2011 and in 2012. However, in 2013, the Association refocused on the issue of Article 9 as the LDP returned to power in late 2012 under hawkish Abe Shinzō. In mid-2014 when the Abe cabinet changed the government interpretation of Article 9, the Association's administrative body called for dormant subgroups to reactivate.Footnote 58
The Movement to Save Article 9 is sustained by a range of organizations and networks, including: the Article 9 Association, comprising 7,500 affiliated subgroups nationwide; the ‘Students Emergency Action for Liberal Democracy’; the ‘Do Not Let Japan Wage War, Do Not Destroy Article 9’ group; and the Combined Action Committee (comprising the Committee of 1000, the ‘Don't Destroy Article 9 through Interpretation’ group, the Action Committee, the ‘Stop Them from Building a Nation for Warfare’ group, and the Joint Center to Protect and Embrace the Constitution).Footnote 59 Movement actors have engaged in a series of activities regarding Article 9, such as organizing talks, seminars, and large-scale conferences; distributing pamphlets; collecting supporting signatures; lobbying local assemblies; and holding both small and large-scale demonstrations.Footnote 60
Especially, movement actors have engaged in confrontational constitutional mobilization when the government attempted to reinterpret Article 9. On September 19, 2015, the Japanese Parliament passed the security-related bills proposed by Prime Minister Shinzo Abe and the ruling Liberal Democracy Party, which allows the country's military to fight in foreign conflicts for the first time after WWII.Footnote 61 Movement actors strongly opposed the bills as unconstitutional. When the government proposed the security-related bills, it was reported that over 9,000 scholars signed up in an appeal issued by an association of scholars opposing the bills as unconstitutional.Footnote 62 The appeal reads:
The Abe administration has submitted an International Peace Support Bill and an omnibus Peace and Security Legislation Consolidation Bill amending 10 war-related laws for the worse to the Diet, where they are currently being deliberated. Violating Article 9 of the Constitution, these bills would provide for Japan's Self-Defense Forces to cooperate actively with U.S. and other foreign military operations overseas. We very strongly appeal for the Diet to consider them most carefully and to defeat them in keeping with the Constitution.Footnote 63
Koichi Nakano, professor of political science at Sophia University, said ‘The bills are unconstitutional’.Footnote 64 He also noted:
Constant protests against the bills are held every week by activist groups, students and even women, a population that seldom participate in social activities here in Japan, adding that Abe's high-handed ways to push forward the bills are, ironically, energizing and making up opponents to fight against the legislation.Footnote 65
On September 16, 2016, when Parliament was about to pass the security bills, an estimated 13,000 people gathered outside Parliament in Tokyo calling for the bills to be rejected.Footnote 66 One demonstrator said: ‘The bills are against the constitution’.Footnote 67 Especially, the Students Emergency Action for Liberal Democracy connected the movement against the bills to broader demands for ‘freedom and democracy; respect for constitutionalism; social security for all through sustainable and just growth as well as fair distribution’.Footnote 68
Despite the strong social resistance mobilized, the bills were passed by Parliament. The social movement has continued after the passage of the bills. On March 29, 2016, when the legislation went into force, demonstrations against the laws were scheduled in at least thirty-five cities across Japan.Footnote 69 Hiroji Yamashiro, chairman of the Okinawa Peace Center, said: ‘The new security laws are the worst legislation ever that overturn [sic] the foundation of the Constitution’.Footnote 70 He added: ‘We will continue to raise the voice of opposition’.Footnote 71 On April 26, 2016, about 500 people, including constitutional law scholars and residents living near military bases, brought legal proceedings against the security bills at Tokyo District Court for threatening ‘their constitutional right to live in peace’.Footnote 72 Hundreds of people also filed or planned to file legal proceedings against the bills in other district courts.Footnote 73
To protect state constitutional pacifism, actors of the Movement to Save Article 9 employed constitutional language, ideas, and symbols to mobilize for informal, cultural constitutional change: the change in the political constitutional interpretation of pacifism. The legislative and governmental processes of informal constitutional interpretation offer the constitutional opportunities for movement actors to mobilize for a different construction of the constitutional meaning of constitutional pacifism. Movement actors draw on the existing constitution and the general language of constitutionalism, freedom, and democracy to frame their arguments. They approached both legislators and judges as constitutional resources for their mobilization.
The story of constitutional amendment and constitutional mobilization in Japan is ongoing: Prime Minister Shinzo Abe plans to pursue a formal constitutional amendment to abolish Article 9, and the social movement continues to oppose this gesture.Footnote 74 The conclusion remains to be seen.
B. South Korea
1. Background of social movements
Political scientists and sociologists have extensively examined the crucial role of social movements in South Korea's democratic transition and consolidation.Footnote 75 The year 1987 is particularly significant, as this was when direct presidential elections were held which marked the transition to democracy and the end of successive authoritarian regimes that had ruled South Korea since 1948.Footnote 76 This democratic transition was not an entirely top-down reform project but was also driven by social movements, especially the June Democracy Movement in 1987. As Paul Y Chang and Gi-wook Shin argue, ‘a series of public protests in the summer of 1987 provided crucial bottom-up pressure that contributed to the ruling bloc's decision to institute political reform’.Footnote 77 Yet this did not happen suddenly, but was the consequence of nearly two decades of social mobilization.Footnote 78 ‘Despite autocratic rule, the movement for democracy developed throughout the 1970s and 1980s, and culminated in the mobilization of millions for political liberalization in the summer of 1987.’Footnote 79
Following democratic transition, social movements continue to play a role in the consolidation of democracy in South Korea. ‘New social movements’ post-1987 are concerned with a range of issues and have become more institutionalized.Footnote 80 To illustrate, the Korean Anti-Pollution Movement Association focuses on environmental issues; the Citizen's Coalition for Economic Justice is concerned with a range of social, economic, and political reforms; student movements which care more about intra-campus issues than being pro-democracy as in the past; the labour movements; and the women's movements.Footnote 81
2. Social movement constitutional mobilization
Social movements in South Korea actively engage in constitutional processes. Movements during the authoritarian period were triggered by constitutional entrenchment. The fact that President Park Chung Hee amended the national constitution to allow him to run for a third presidential term in 1971 provided the constitutional opportunity that triggered large demonstrations by university students.Footnote 82 In 1972, he replaced the existing constitution with the Yusin Constitution, identified by some scholars as the ‘legalization of dictatorship’, which instigated social mobilization for democracy.Footnote 83 Constitutional revision was then the central concern of the June Democracy Movement. One of the direct motivations for this movement was President Chun Doo-hwan's abrupt announcement against constitutional revision.Footnote 84 The South Korean coalition of social movement organizations:
agreed upon the importance of constitutional revision as a movement goal and a tool for consensus mobilization. Although the majority of movement organizations did not reach consensus in the terms of a detailed agenda, they succeeded in relating their movement's issues to the common goal of the coalition networks: constitutional revision.Footnote 85
The June Democracy Movement:
forced the regime to choose between reconciliation with the opposition forces or military intervention. At last, on the (sic) June 19th, the chairman of the ruling party, Roh Tae Woo declared a plan for a constitutional revision including direction presidential election among with the restoration of basic human rights, freedom of the press, and local autonomy.Footnote 86
The Constitution of the Republic of Korea 1987 (1987 Korean Constitution), the only constitution in Korean constitutional history that was enacted ‘in response to popular demands’, provides for direct presidential elections, ‘strengthens the power of the legislature and further protects individual rights’.Footnote 87
Under the new constitutional framework, direct presidential elections were held on 16 December 1987, a civilian government was created in 1993, and the first peaceful transfer of power to an opposition party took place in 1993.Footnote 88 The 1987 Korean Constitution also stipulated the creation of a constitutional court ‘in response to the citizens’ strong longing for democracy and assurance of basic rights’.Footnote 89 South Korea has become one of the few well-established constitutionalist polities in Asia, and social movements were directly engaged in the process of constitutionalization of the Korean polity.
Importantly, with an effective constitutional court, social movement actors in the post-transitional period have employed constitutional litigation to mobilize for the constitutional protection of specific human rights. Ki-young Shin notes: ‘In Korean history since 1987, social movements have often utilized the Constitutional Court's reform-oriented stance and its institutional and symbolic superiority over other state organs.’Footnote 90 For example, women movement actors successfully mobilized the Constitutional Court to abolish the Korea's family head system (hoju chedo) stipulated in the Civil Code, which subordinated women's rights and status to the male head of the family.Footnote 91
But social movement actors in South Korea are not always successful in their deployment of constitutional litigation. The sex workers’ movementFootnote 92 in South Korea also approached the Constitutional Court as a resource to mobilize for abolishing the Act on the Prevention of Sexual Traffic and Protection, etc. of Victims Thereof,Footnote 93 but they failed. The enactment of the law created an opportunity for legal mobilization: nearly 3,000 sex workers staged a demonstration against the law outside the National Assembly.Footnote 94 Important organizations supporting this movement include the Democratic Sex Workers Alliance, the Centre for Women Culture and Theory, and the Alliance for Progressive Society.Footnote 95 They continued to hold demonstrations calling for abolition of the anti-prostitution law. For example, on May 17, 2011, a demonstration was held at a red-light district in Yo˘ngdu˘ngp'o, and, on September 22, 2011, another demonstration involving 1,500 women was organized in Seoul.Footnote 96 Activist sex workers framed their arguments in terms of human rights.Footnote 97 Notably, Kim Jeong-mi, a Seoul sex worker, filed a petition before the Constitutional Court to overturn the anti-prostitution law, and District Court Judge Oh Won Chan submitted the request on her behalf.Footnote 98 ‘She argued that the laws violated her right to self-determination as guaranteed by the South Korean constitution.’Footnote 99 After two years, in March 2016, the Constitutional Court rejected the challenge, reasoning that ‘decriminalizing prostitution would inspire an explosive growth in sex trade, threaten the stability of South Korea's society and economy and inspire disorderly sexual behavior’.Footnote 100 After the court ruling, Chang Se-hee, a member of a sex workers’ activist group, told a news conference: ‘We will not surrender to this ruling but will form a sex workers union and go all the way to the United Nations.’Footnote 101
Actors of the Korean sex workers’ movement engaged in constitutional mobilization. They employed the constitutional review process as a constitutional opportunity to mobilize for changing constitutional interpretation. They drew on the existing constitution, particularly the constitutional right to self-determination, to frame their argument. With the existence of an effective judicial review system, they approached judges as constitutional resources to make their demands of the constitutional rights. Their failure was in part because the government in a Confucian-informed society explicitly denies recognition of prostitution in the strong form of constitutional law for moral reasons, but implicitly tolerates this ‘large-scale business’Footnote 102 due to pressures from social movements.
‘New social movements’ in South Korea do not merely focus on issues of constitutional rights. They are also concerned with institutional issues and the overall constitutional system. The recent 2016–17 South Korean protests, or the Candlelight Struggle (Korean: 촛불항쟁), illustrates this aspect. This social movement involved a series of protests against President Park Geun-hye over alleged corruption. Movement actors included ‘labor unions, university student unions, farmer unions, left-wing parties, families of the Sewol ferry disaster victims, feminist groups and citizens from all walks of life’.Footnote 103 The public was upset by the ‘biggest presidential scandal since the nation's democratization almost three decades ago’.Footnote 104 President Park Geun-hye was charged for:
[d]emanding bribes from prominent chaebols (South Korea's large business conglomerates), preparing unlawful action against political opponents, entrusting a friend to make important political decisions and appointments, as well as failing to appear or act in the aftermath of the Sewol ferry tragedy in which over 300 people, mostly school children, died.Footnote 105
On March 10, 2017, the Constitutional Court unanimously confirmed the parliamentary impeachment and removed the President from office.Footnote 106 Movement actors played an influential role: they demanded parliamentary impeachment and urged the Court to confirm the impeachment.Footnote 107 This is why one analyst concludes that the removal of the President was the outcome of ‘the swell of popular anger, the legislature and the judiciary’.Footnote 108
The influence of the Candlelight movement went beyond the President's removal. Movement actors demanded the amendment of the 1987 Korean Constitution to limit presidential power. While the proposal for constitutional amendment to put further checks on presidential power has been long put forward, the presidential impeachment and subsequent dismissal ‘has given renewed momentum to do so’.Footnote 109 The Korean constitutional amendment process operates as the platform for social movement constitutional mobilization. Korean civil society groups have created the Network for a People-led Constitutional Amendment Process, calling for a participatory constitutional amendment process and substantial amendments, including consolidating existing basic rights, altering government structure, and injecting ‘the spirit of the candlelight protests into the constitution’.Footnote 110 It is said that:
to realize their goals, the network will carry out educational workshops throughout the country through its national network and hold rallies demanding a guarantee of people's participation … While demobilized, the memory of the candlelight protests still burns in people's hearts.Footnote 111
‘New social movements’ in South Korea have focused on the consolidation of constitutionalism by mobilizing for not only the protection of established constitutional values through judicial review and political forms of constitutional practices, but also the redesigning of the constitutional system through the formal constitutional amendment process. The social movements’ concerns over constitutional design are both procedural and substantive. The procedural concern is involving social actors in the constitutional amendment process, while the substantive concerns are on rights and further institutional constraints on public power.
C. Taiwan
1. Background of social movements
Like South Korea, Taiwan has a rich history of social movements. Social movements have also played an important role in the democratic transition and consolidation on the island.Footnote 112 There have been three waves of social movements in Taiwan.Footnote 113 The first wave took place between 1980 and 1986 before the lifting of martial law in July 1987, which included seven social movements, namely: the Consumers’ Movement (1980–), the Anti-pollution Protest Movement (1980–), the Nature Conservation Movement (1982–), the Women's Movement (1982–), the Aborigines Movement (1983–), the Students’ Movement (1986–), and the New Testament Church Protests (1986).Footnote 114
The second wave of Taiwan's social movements began in 1987, the year when the ruling Chinese National Party (the Kuomintang Party, KMT) ‘finally took steps toward liberalization and democratization by lifting martial law, granting the formation of new political parties, and permitting the establishment of new vehicles of the press’.Footnote 115 This second wave included another seven social movements, namely the Labour Movement (1987–), the Farmers’ Movement (1987–), the Teachers’ Movement (1987–), the Handicapped and Disadvantaged Welfare Group Protests (1987–), the Political Prisoners’ Human Rights Movement (1987–1990), and the Mainlanders Home-visiting Movement (1987–1989).Footnote 116
The third wave was undertaken after the transition to democracy, and included six new social movements: the Taiwanese Home-returning Movement (1988–1993), the Hakka (indigenous people's) Movement (1988–), the Anti-nuclear Power Movement (1988–), the Non-homeowners ‘shell-less snail’ Movement (1989–), the Judiciary Reform Movement (1990–), and the Journalists’ Autonomy Movement (1993–).Footnote 117 The Student's Sunflower Movement can be classified as belonging to the contemporary wave.
The evidence in Taiwan's case supports the argument that ‘organized social movements have great impact on pushing and persuading the authoritarian regimes to opt for democratization’.Footnote 118 It is argued that ‘the KMT's democratizing stance did not come about from its own initiative. Rather, the KMT conceded to the increasing demands from the mobilized civil society.’Footnote 119
2. Social movement constitutional mobilization
Social movements in Taiwan engaged in constitutional mobilization during the transitional period. Most notable is the 1990 Wild Lily student movement, in which some 22,000 sit-in demonstrators mobilized for: ‘(1) abolishing the provisional amendments to the constitution, (2) completing the re-election of the parliament, (3) a multi-party political negotiation, and (4) a schedule for political and economic reforms’.Footnote 120 Social movements resulted in the lifting of martial law in 1987 and the restoration of the normal effect of the constitution, and opened the door for a series of constitutional amendments constructive to Taiwan's gradual transformation from authoritarianism into constitutionalism.Footnote 121
After the transitional period, social movement actors have deployed constitutional instruments to mobilize for continued realization of constitutional values. Like the case of South Korea, with an effective constitutional court, social movement actors have appropriated constitutional litigation as a movement strategy.Footnote 122 In particular, the gay movement also deployed the judicial process of constitutional review, as evident in the 2017 landmark case in which the Taiwan Constitutional Court issued Interpretation No 748, which legalized same-sex marriage.Footnote 123 The case resulted from two separate constitutional petitions to the Court: one by the Taipei Municipal Government and another by a veteran activist in the gay rights movement, Chia-Wei Chi.Footnote 124 Situating this case within the broader political context of social movements in Taiwan, Ming-Sung Kuo and Hui-Wen Chen argue that ‘the rise of same-sex marriage to the top of the antidiscrimination agenda resulted from the continuous effort of gay rights activists that has paralleled the democratic movement’.Footnote 125
But social movements in Taiwan go beyond the demands for the realization of the values in the existing constitutional framework. The Student's Sunflower Movement, which occurred in the spring of 2014 and occupied the national legislature for twenty-four days, has moved beyond opposition to the free trade pact with mainland China to call for constitutional revision.Footnote 126 As one scholar observes:
On March 30, an unusually large protest rally of purportedly 500,000 people took place to emphasize four principal demands: (1) to withdraw the CSSTA (Cross-Strait Service Trade Agreement) from the legislature, (2) to enact the bill on Cross-Strait Agreement Supervision (CSAS), (3) to legislate the CSAS bill before the legal review of CSSTA, and (4) to convene a citizens' constitutional conference (gongmin xianzheng huiyi).Footnote 127
There are two procedural and substantive aspects of the demands for constitutional revision. First, one of the concerns of social movement actors is the process of constitutional revision. They called for a constitutional revision process with wide participation of the citizens, who are conceived as the subjects or author of the constitution. Movement actors created the Alliance to Promote a Citizen Constitutional Council, composed of over twenty human rights and social activist organizations.Footnote 128 This organization ‘proposed a two-stage process in which a “national affairs conference” would bring political parties, legislators, civil society organizations and other civic leaders together to brainstorm how best to bring about grassroots-based constitutional changes’.Footnote 129 Second, the Sunflower Movement actors are concerned with the substance of constitutional revision. ‘The top priority for social activist and human rights organizations is securing the equivalent of a constitutional Bill of Rights.’Footnote 130 They demanded for incorporation of ‘detailed provisions to protect basic human and social rights from discrimination or infringement by the state and substantive abrogation by government-business collusion’.Footnote 131
Although the Sunflower Movement has not led to formal constitutional revision, it influenced public constitutional debates and the subsequent constitutional mobilization in Taiwan. To illustrate, the ‘ultimate goal’ of the ‘Civil Movement for Constitutional Reform’ established on 10 November 2014 ‘is to hold a national citizens’ constitutional conference’, the main objective of the Sunflower Movement.Footnote 132
D. Comparative Discussion
The active engagement of social movements in constitutional processes provides practical foundations for rethinking the nature of modern constitutionalism, and the nature and role of constitutionalist institutions in Japan, South Korea, and Taiwan.
The ample evidence of social movement constitutional mobilizations and their effects casts doubt on the instrumentalist conceptualization of constitutionalism in these East Asian polities as a top-down project led by political elites. In fact, the process of constitutionalizing these polities cannot be separated from social dynamics from the bottom, which involves discursive sites of social engagement, contestation, and mobilization. The creation and consolidation of constitutionalism in these East Asian jurisdictions is more than a top-down instrumental process, and must be situated within the engagement of the bottom forces, namely social movements, in contesting the formal and informal processes of institutional, rightist, ideational, and procedural constitutional change. Movement actors mobilize for changes in constitutional structure, constitutional rights, constitutional principles (eg pacifism), and a participatory constitutional amendment process. The consolidation of constitutionalism in the three polities involves constitutional activism of the bottom social forces: the social movements. This is determined by shared general constitutional opportunities. Once constitutionalism was created in the three polities, it provided constitutional opportunities and guarantees for the operation of social movement constitutional mobilization, especially the constitutional protection of freedom of speech, freedom of association, and freedom of assembly. The consequence tends to be that social movements both shape and are shaped by constitutionalism. Other shared general opportunities include vibrant civil societies which are enabled by the democratic constitutional arrangement, economic development, and technological advancement.
In addition to constitutional instrumentalism, the rich experience of social movement constitutional mobilization may pose a challenge to the juris-centric discourse of legal constitutionalism in East Asia. The judicial review process is not purely legalistic, or, more accurately, ‘constitutionalistic’. It involves not only legal adjudication, but also contestation, resistance, engagement, and mobilization inside and outside the courts. The courts may adopt or at least respond to constitutional demands of social movement actors and/or their political supporters. Consequently, the construction of constitutional meanings, even through the judicial review process, is not purely juridical, but also socially mobilized.
The engagement of social movements in formal constitutional amendment processes in East Asia further complicates comparative theorization about constitutional change in two ways. First, this practice suggests that comparative theorization about the constitutional role of social movements must be open to the discursive, non-juris-centric venues for constitutional mobilization, contestation, and engagement. In American constitutional exceptionalism, as the federal constitution ‘is extraordinarily difficult to formally amend’,Footnote 133 constitutional change mainly takes the form of judicial constitutional reinterpretation, and hence, courts may operate as the principal venues for constitutional activism of social movements.Footnote 134 But formal constitutional amendments are undertaken for different purposes, such as to facilitate transition from authoritarianism to a constitutional democracy,Footnote 135 or to undermine a constitutional democracy.Footnote 136 The second point concerns the dynamics surrounding formal constitutional amendments. Formal constitutional amendments should be conceptualized in dynamic rather than in merely legally formalist terms. Different aspects of constitutional amendment (the initiative, formal provisions, political intention, and the actual process of amendment) provide symbols, language, and fora for contestation, discourse, and mobilization of different actors: politicians, jurists, social movement actors, and citizens.
Despite the convergent features above, the role of social movements in the creation and development of constitutionalism in the three East Asian polities presents significant divergences, especially between Japan and the other two East Asian cases. The divergent features are determined by the different constitutional opportunities. To begin with, the general constitutional opportunity of the civil societies is different. Although the three polities have vibrant civil societies, social movements in Japan are less dynamic than those in South Korea and Taiwan. Consequently, the role of social movements in the creation and consolidation of constitutionalism in the latter two tend to be stronger than in the former.
In addition to the general opportunities, the specific constitutional opportunities in the three polities are different. The first difference concerns the opportunities arising through formal constitutional change process. In Japan, formal constitution-making in 1947 was the consequence of external imposition, and therefore domestic actors, such as social movements, did not play a central role in this process. More recently, social movements in Japan have engaged in consolidating the established constitutional democracy. Social movement actors aim to prevent constitutional amendments that they perceive as destructive to the constitutional democracy, evinced by the Movement to Save Article 9. Four decades later, constitutionalism was created in South Korea and Taiwan as the consequence of domestic transition. The transitional process requires formal constitutional change and provides the space for engagement of domestic actors, including social movements. The continued development of constitutionalism in South Korea and Taiwan provides room for formal institutional changes, which may require formal constitutional amendments. This creates specific opportunities for social movements to put pressure on constitutional amendment initiatives and engage in this process. South Korea's Candlelight Movement and Taiwan's Student Sunflower Movement illustrate this aspect.
Another difference in the specific constitutional opportunities concerns the informal constitutional amendment process. Japan has a conservative Supreme Court which has seldom engaged in constitutional review,Footnote 137 and this limits the specific constitutional opportunities for social movement constitutional mobilization in the country. Instead, social movements in Japan appropriate the unique governmental process of constitutional review to mobilize against changing the constitutional meaning of pacifism. Although social movements do not ignore the judicial process when opportunities are available, courts in Japan are neither the principal drivers of constitutional change nor the principal givers of constitutional meanings. In contrast, South Korea and Taiwan have active and effective constitutional courts, and therefore the judicial process of constitutional review provides specific constitutional opportunity for social movements to mobilize for informal constitutional change through judicial interpretation. Although effective constitutional courts play an important role in constructing constitutional meanings in the respective countries, they are not the sole engineers of constitutional law. The constitutional courts cannot be conceptualized as autonomous agents. When they become consequential constitutionalist institutions, they become appealing resources and venues, they create important opportunities, and therefore they attract the attention and energy of other social and political forces. Consequently, the constitutional courts are inescapably involved in contested relations with non-judicial constitutional actors, including social movement actors.
V. CONCLUSION
This article has articulated a theoretical framework for understanding the engagement of social movements in constitutional processes in Japan, South Korea, and Taiwan, and initially explored this experience within that framework based on secondary literature. Empirical work and the use of original sources are necessary to more fully explore the causal relations between social movements and constitutionalism in these polities.
In addition, these East Asian stories may have implications for understanding the struggle for constitutionalism in other Asian states,Footnote 138 which may also involve constitutional mobilization by social movements.Footnote 139 The experience in other Asian states can complicate comparative constitutional inquiry into social movements in at least two ways. First, the struggle for constitutionalism may require making a new constitution, and therefore the constitution-making process may provide a specific opportunity for social movement constitutional mobilization. One example is the ‘My Constitution: A Youth Movement for a New Sri Lankan Constitution’.Footnote 140 Second, movement actors mobilizing for constitutional change under conditions where general opportunities (eg constitutional protections of political freedoms) are limited may take a less confrontational and more dialogical approach.
Finally, these East Asian stories have implications for theorizing models in comparative constitutionalism beyond the courts generally. Different theorizing models of non-juris-centric constitutionalism include: popular constitutionalism, democratic constitutionalism, progressive constitutionalism, departmental constitutionalism, and administrative constitutionalism.Footnote 141 The Sunflower Movement also provides an empirical base for theorizing about ‘civic constitutionalism’.Footnote 142 The creation and consolidation of a constitutionalist order and the definition of constitutionalist meanings may both shape and be shaped by activities of a mobilized people.
