Thursday, July 01, 2004

more on the Constitutional Court

Some of the following advice from by47ronin sounds awfully familiar to me from my own experience in the Korean court system-- especially the advice about sticking to the point and avoiding irrelevancies.

I'll let his words speak for themselves:

In case you intend on forwarding this to anyone working on a petition for the Constitutional Court, some pointers*:

[*disclaimer about not being a lawyer but having had successful court experiences fightin on his own and others' behalf; I've edited out the disclaimer because I wasn't sure ronin wanted the personal info out there]

--The petition MUST be as narrow as possible in terms of scope and applicability.

--MUST be based on demonstrable violations... proof. Evidence. Statements. Names. Places. Dates. THAT's the stuff that is going to constitute the bulk of your petition to start with. A summary of the violation listing facts and involved persons, names, authorities, agencies, policies.

--MUST state the specific violation of a right/Constitutional article claimed and state precisely how the act infringes the right. In this case, what you guys (2nd person generic, not anyone in particular) are attempting to prove is that your blog is deliberately being blocked as a result of such-and-so action, and that the block is a direct violation of this-and-that article of the Constitution AND...

--SHOULD include relevant Ministerial articles that prescribe ministerial duties and obligations. For example, for the MIC, these can be found at

If, in addition to a Constitional violation there is a violation of a ministerial act or decree, that is further quotation and strengthens your case. Also, the acts may give you a good indication whether any law has actually been broken.

--SHOULD consult w/ a Korean attorney. I don't mean any lawyer. I mean specifically a graduate of the SNU Justice and Research Institute, whatever they call that tool they use to mold their legal superheroes. The point here is, Korean law is statutory and fairly monolithic. An opinion from a lawyer will tell you pretty much whether you even have grounds for filing a petition to start with, even give you a good indication how well you should fare.

--SHOULD avoid all volatile politically loaded arguments and stick narrowly to the legal complaint. This is important. You can't file a complaint even MENTIONING Nick Berg, Kim Sunil, Hyosun and Misun, anything. Forget it. You do that, you're doomed from the start. Doomed I tell you... DOOMED. Your complaint is going to be something along the lines of, I live in Korea. I have an internet website. It's hosted from here. The other day, I tried to access it. I couldn't. I called my ISP. They said they're blocking it. I asked them why. They said, gubment made me do it. I called gubment. They said, yeah, sorry. Astute and learned members of the court, I am of the firm conviction that my rights under article blah-de-blah-blo paragraph schmo are being violated in that my right to exercise free and open and unrestricted expression and communication through digital/electronic means has been restricted/impeded blahblahblah. That's going to be the general outline for a petition to the Constitutional Court. Not, "You showd Nick Berg's killing on MBC you fuckin' HYPOCRITE FUCKS... you let pictures of Misun and Hyosun get plastered all over the landscape you perverted FUCKS and now you're gonna do this to me 'cause a Korean gets killed etc. andsoforth." Maybe this is belaboring the point, but I've already seen tomes of this nature, and I'm telling you, it's not gonna do you any good.

--FYI, your ideal litigant is a young, innocent girl with a website about her daily observations on paint drying and grass growing who can no longer share her observations with her millions of fans across the planetary system as a result of the cruel and illegal actions of ________ ministry. Catch my drift?

--PRESS. You're gonna need press coverage, and you're gonna want to get Koreans on your side on this. The strongest appeal to Koreans is to point out that by permitting random and arbitrary acts of censorship now, the precedent is set for whichever bureaucrat decides tomorrow that the word 'kochu" has become too sexually loaded, and for the betterment and social purification purposes, it's existence is fromheretofore banned for eternity and punishable by blahblahblah. You will NOT score points with Koreans debating the other beheading/horror video crap. If you don't believe me... try it.

That's a preliminary on a petition to the Constitional Court. The reason I've taken my time for this, and the reason I'm investing in this is that, like any case, it stands a chance of setting an important precedent. Btw Kevin... you're right... when it's us little people in court with some grievance, anything goes and convention's the rule. The thing is... when a brief goes to the Constitutional Court, it actually becomes the COURT vs. the bureaucracy. It's Godzilla does Mothra. The Korean Constitutional Court is a new entity, in bureaucratic terms. These guys _want_ to exercise their powers. You give them a good, sound, tight legal complaint, and it's going to go your way. Which means reading the Constitution carefully, finding out exactly who is blocking what and by what authority, finding out what articles guide that agency and then determining how the act violates the Constitution and their enforcement decrees.

Peace out.


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