KWDI Korean Women’s Development Institute

Abstract

A Study for Enhancing the Effectiveness of Women and Family related Laws (Ⅹ):
Gender-Sensitive Revision of the Constitution

Seon-young Park

Bok-soon Park

Nan-jue Kim

Hyeon-seung Ko

Bo-ram Park

 

 

Thirty-five years have passed since the 9th amendment to the Constitution was made in 1987. Against this backdrop, noting the need for a gender-sensitive constitution, this study is designed to propose the revision of gender equality-and family-related provisions of the Constitution amid circumstantial changes in gender relations that Korean society is experiencing.

 

To this end, this paper is organized as follows: ChapterⅠdiscusses research objectives, content, and methods. Chapter Ⅱ deals with the theoretical background and examines circumstantial fluctuations in gender relations and in gender equality policies following the 9th amendment to the Constitution made in 1987, focusing on changes in and the development of women-and family-related legislation. Chapter Ⅲ looks into the Preamble to and the General Provisions of the Constitution and the history of gender equality-and family-related provisions before reviewing content and issues in connection with gender equality and families among those proposed for the revision of the Constitution. Chapter Ⅳ analyzes the need to amend the Constitution and ways to revise gender equality-and family-related provisions of the Constitution via expert surveys. Chapter V studies and analyzes gender equality-and family-related provisions of foreign constitutions, figuring out their implications. Based on these, chapter Ⅵ proposes measures to amend the Constitution in a gender-sensitive manner.

 

Research results are as follows: first, the gender-sensitive revision of the Constitution is required due to the following reasons: ⅰ) the Constitution should accept and reflect circumstantial changes in gender relations to show the future of women, gender relations, and families in Korean society and thereby to promote democracy; ⅱ) the responsibility of the nation should be strengthened via the more substantial and active standardization of the Constitution to substantially realize gender equality; and ⅲ) constitutional standardization for women and gender equality provides a tool for women to make an objection to national policies and to positively affect changes in their lives and gender relations via active participation.

 

Second, the gender-sensitive amendment to the Constitution should be made in the following directions: ⅰ) the Constitution refers to an ideological and political value system that the national community should promote. Amid circumstantial changes in gender relations, the gender equality-related provisions of the Constitution should be revised to strengthen its normative force and to specifically present ‘what forms of gender equality should be promoted’ via constitutional values; ⅱ) gender equality-and family-related provisions included by reflecting the opinions of women’s community when the 9th amendment to the Constitution was made in 1987 should be further revised, considering their original intention and impact and more actively reviewing new rights for gender equality; and ⅲ) the Constitution refers to a general system that presents the future of the national community and reflects the volition of its members to achieve such a goal. Therefore, it should reflect the demands of the times for gender equality in life as a whole and contain information for promoting more universal values and an open society.

 

Third, ways to amend the Constitution in a gender-sensitive manner can be summarized as follows: ⅰ) the Preamble to the Constitution placed before its main body describes the guiding philosophies and basic principles of the Constitution. Unlike the revision of general provisions, the Preamble is amended when the spirit of the Constitution should be revised to a certain degree to reflect new social circumstances. Therefore, forward-looking discussions are required to include the value of ‘care’ in the Preamble. Care refers to cultivating healthy members who will live together in society and supporting them to enjoy rights to choose and control their lives on an equal footing. It is a broad concept including childbirth, childcare, education, and medical services. The universal process of looking after others and being taken care of by others enables humans to play their due roles and makes it possible for communities to be sustained and maintained. The concept of care should be stipulated in the Preamble as a value that should be promoted and cherished by individuals, society, and the nation, thereby redefining the significance of humanity and care and establishing an ideological value system for the national community.

 

ⅱ) A new provision regarding the equal participation of men and women should be included in the section of ‘rights to equality.’ ‘Parité’ or ‘paridad’ has recently emerged as a new concept for the gender-sensitive application of the Constitution, which is distinguished from affirmative action for substantial gender equality. At first, parité was understood as a concept that strengthens the quota system as part of affirmative action in the realm of elective politics. However, it has been newly defined or organized as the one for implementing the constitutional vision of gender equality for the realization of democracy, rather than a remedy for women’s underrepresentation or a temporary measure for reducing inequality. The Korean Constitution should reflect gender equality in political and economic representation and in participation in economic and social activities, as well as gender mainstreaming where gender perspectives are integrated at all levels of policies for gender equality. Therefore, the provision for ‘equal participation’ should be introduced in an integrative manner regardless of spheres.

 

ⅲ) The government’s responsibility for women’s labor should be further strengthened. The special protection of women and minors in labor has been ensured since the First Constitution of the Republic of Korea was promulgated in 1948. Article 17 thereof regarding rights and obligations to work and the legalism of labor standards prescribes that the labor of women and minors is subject to special protection. The 9th amendment to the Constitution made in 1987 distinguishes the labor of women from that of minors, clearly stipulating that women’s labor should be subject to protection and must not be subject to discrimination. As pointed out in expert surveys, the scope of ‘special protection’ is not clearly defined and the labor of women can be interpreted to be different from and to fall short of that of men regarded as a standard. Many foreign constitutions set forth gender equality in labor in a separate provision. Considering the characteristics of Korean labor markets in gender inequality including the gender wage gap and the high percentage of women in non-regular labor force, as well as foreign constitutions, Article 32, Paragraph 4 of the Constitution should be revised to specify the protection of women & the prohibition of discrimination against women in labor and the greater responsibility of the government.

 

ⅳ) Sexual and reproductive rights should be newly stipulated. In Korea, discussions on reproductive rights were initiated when the revision of the Constitution was discussed between 2017 and 2018. Specifically, it was more actively dealt with when the abortion law was decided as unconstitutional by the Constitutional Court in 2019. Reproductive rights are prescribed in Article 10 (rights to self-determination based on personal rights), Article 36, Paragraph 2 (maternity protection), and Article 32, Paragraph 4 (the protection of women & the prohibition of discrimination against women in labor and rights to health) of the Constitution. Article 36, Paragraph 2 of the Constitution is especially meaningful because it stipulates the responsibility of the government for reproduction and presents a legal basis for policies supporting pregnancy, feeding, and childcare. However, the concept of maternity is not clearly prescribed, limiting reproductive rights to maternity protection (pregnancy, childbirth, feeding, and childcare) and thereby failing to include more comprehensive spheres that should be covered by reproductive rights. Considering the background of reproduction emerging as a right, the reality where reproductive rights are limited to maternity protection, and foreign constitutions recognizing reproduction as a right, the Korean Constitution should also initiate specific discussions on the establishment of sexual and reproductive rights. Due to its complicated nature, reproductive rights can be considered either as fundamental right to freedom or as social rights. Selecting one of the two is not appropriate in ensuring the effectiveness of rights. As a result, new independent rights need to be introduced to protect fundamental rights to reproduction in an organic and integrative manner.

 

ⅴ) Rights to be free from gender-based violence should be newly established. In connection with women-and family-related laws, the sphere of gender-based violence has been the most frequently exposed to changes in legislation since the 9th amendment to the Constitution was made. Since the late 2000s, discussions on including gender-based violence-related provisions in the Constitution have little been conducted in the process of discussing the revision of the Constitution and especially in connection with the introduction of new fundamental rights. However, in spite of the establishment of related legal systems, gender-based violence has continued to exist and has further diversified in forms including illegal filming/distribution and sexual abuse material production. Digitization has changed the pattern of gender-based violence via technology. Because gender-based violence requires more integrated understanding than any other issues, as well as the government’s active protection and intervention, it should be independently prescribed in the Constitution.

 

ⅵ) The revision of family-related provisions can be made as follows. Article 36, Paragraph 1 of the Constitution is the only constitutional provision regarding marriages and families. This provision sets forth national systems and principles for establishing and maintaining marriages and family lives, rather than directly stipulating related fundamental rights. Separate from marriages and family lives, the right to found a family should be prescribed. The Korean Constitution does not stipulate the right to found a family. International human rights norms and many nations in the world have separated the right to marry from the right to found a family. The right to found a family that was deemed to organically connect with marriages is now understood to separate from the right to marry. The Cuban Constitution of 2019 distinguishes the right to found a family from the right to marry and prescribes that the protection of various types of families is determined by law, thereby strengthening the diversity of family types. In order to prevent the right to found a family from being interpreted in terms of organic relationships with marriages, provisions on the right to found a family need to be put before those regarding marriages and family lives.

 

Research areas: family and care, representation, law and plan, labor and employment, gender-based violence and safety

Keywords: gender-sensitive Constitution, gender equality, equal number of men and women, equal participation, sexual and reproductive rights, the right to found a family, and gender-based violence