Constitution of 1948: The Mirror Stage of the Nascent-State
Much like Jacques Lacan's theory of the mirror stage where a child discovers her identity through her reflection in a mirror at about six to 18 months old, both North and South Korea underwent a self-discovery process at the inception of what I call the ‘nascent-state' in 1948 as both countries observed each other and found their ontological identities through the dialectical relationship with each other.
As both countries were discovering themselves out of a 35-year Japanese colonial rule, they inevitably had to depend on superpowers to reify their identity: the north was supported by the Soviet Union, and the south relied on the United States.North Korea's first founding constitution was legitimised and adopted in 1948, it is known as the Constitution of the Democratic People's Republic of Korea. Following the liberation of the Korean Peninsula from Japanese rule in 1945, the leadership north of the 38th parallel attempted to rid themselves of any trace of Japanese colonial rule so they proceeded to eliminate the Japanese laws governing them, however by doing so they were tasked to produce a legal replacement to maintain public order. Thus, in 1946 the North Koreans introduced a new legal text that revised Japanese law with notable Soviet influence. Following the collapse of the United States-Soviet Joint Commission on 21 October 1947, North Koreans began to draft a new constitution and by November of that same year, the People's Assembly of North Korea enacted a provisional constitution. This provisional constitution was adopted in July 1948 and was officially implemented and approved by the Supreme People's Assembly (SPA) on 8 September 1948. It is important to note that the 1948 Constitution was enacted the same year South Korea ratified and adopted its first constitution. Both these texts rested on a ‘legal fiction of national unity'[323] in terms of territorial boundaries - for example, Article 103 of the 1948 Constitution states that Seoul is the capital of North Korea (this was later dropped in the 1972 Constitution).
This ‘legal fiction' refers to the fact that North and South Korea would not recognise each other in their founding constitutional texts, in which both claim the entire Korean peninsula as their jurisdiction. Despite this, both these constitutions were used in the process of building two independent nations with two legitimate governments that ‘consolidated its institutionalization'[324] through their founding legal framework. Furthermore, this reflects the roots of the intraKorean dispute regarding statehood, peoplehood, territory, jurisdiction and legitimacy at a time before the Korean War in 1950.The Constitution of the Democratic People's Republic of Korea of 1948 was modelled and, at times, copied verbatim after the 1936 Stalinist Constitution of the Union of Soviet Socialist Republics. According to Jae-hyun Cho,
The Soviet authorities set the name of North Korea as ‘The Democratic People's Republic of Korea' from the end of 1947 and instructed legal experts dispatched from Moscow to draw up the constitution with reference to the Eastern European satellite country's constitution.[325]
The North Korean constitutional framers were heavily influenced by Marxist- Leninist principles and adopted a Stalinist perception of the law as an instrument to implement and push forward the state policy and national agenda. While the Soviet Constitution focused on the organisation of the state and its satellite states in the first few chapters and then the rights of the people, the DPRK Constitution mentioned the rights of the people first and then the organisation of the state in the last few chapters. The logic of the Soviet Constitution was to describe the larger bodies of states and government and how the citizens were positioned within these bodies. The DPRK Constitution described the larger body of citizens and how a small body of government was positioned at the centre of the people to show that the Government was to serve the people.
The DPRK Constitution effectively positioned the SPA as the most centralised organ of state power and the sole legislative body of North Korea, which mirrored the USSR's Supreme Soviet. Chapter 3, Article 32 (aptly named ‘Highest Organ of State Power') of the 1948 DPRK Constitution states that ‘The Supreme People's Assembly is the highest organ of state power in the Democratic People's Republic of Korea'.[326] Furthermore, Article 33 of the same chapter confirms the establishment of the SPA as the legislative body of the regime, it claims ‘The legislative power of the state is exercised exclusively by the Supreme People's Assembly'. The establishment and legitimisation of the SPA reflects the regime's attempt to centralise power through Soviet constitutional principles, which they did so by endowing meaningful and vast institutional and legislative authority on the SPA. In fact, the SPA was vested with such power that it facilitated North Korea's descent into totalitarianism and, as a government branch, the SPA functioned as ‘a quasi-independent agency, a facade erected to give the appearance of democratic representation, and a puppet whose strings are pulled to legitimise state action'.[327] The creation of the SPA and other institutions such as the Korea Workers' Party (KWP) signal how Party leaders intended to use the legal framework and constitutional principles to legitimise and centralise state power, the instrumental nature of constitutions reflect the motivations of the people who create, write and amend the constitutional legal framework of a nation.
Similar to the 1936 Soviet Constitution, the founding constitutional text of North Korea relies heavily on the use of rights and obligations to describe the responsibility of the people. The 1948 DPRK Constitution consists of 10 chapters and 104 articles. This text is no exception to the aforementioned typical constitutional structure that introduces the law with a more idealistic, identity-building section of rights and principles. Its first chapter is on Basic Principles and the second on the Fundamental Rights and Duties of the Citizens, these are followed by eight chapters that focus on less broad terms, these develop the bulk of the national structure and political identity of North Korea.
In these first couple of chapters, the Constitution clearly stipulates the protection of fundamental rights of its people, not unlike Western liberal democratic states. The first chapter articulates land reform and cooperative land organisations that takes power away from capitalist landowners and gives ownership to the people. The second chapter provides protections to the people: gender equality (Article 11), right to vote (Article 12), freedom of speech (Article 13), freedom of religion (Article 14), freedom of education (Article 18), freedom to run their own business (Article 19), etc. The legal language used in these articles is broad, inclusionary and declaratory as the nascent-state of the DPRK was trying to define its political identity.
As the DPRK aimed to establish a legitimate new nation(nascent)-state, it did so by heavily relying on openly disenfranchising any pro-Japanese elements remaining in the legal structure of the country, for example, Japanese property was to be confiscated, as stated in Chapter 1, Article 5 of the 1948 Constitution:
Mines and other mineral wealth, forests, waters, major enterprises, banks, rail, water and air transport, communication, waterworks, natural energy, as well as all the property which formerly belonged to the Japanese state, the Japanese nationals or proJapanese elements, are owned by the state.
Following years of Japanese rule, the making of the 1948 Constitution furthered North Korea in its process of building a state both institutionally and ideologically. While this may resemble Marxist-Leninist principles of socialism, North Korea was more concerned with eradicating remnants of Japanese colonialism, as they saw socialism couched in nationalism.
One striking dissimilarity to the USSR Constitution was that the socialist discourse was largely missing and not emphasised in North Korea's Constitution despite the framers' influence of Marxism-Leninism. Instead, the DPRK Constitution begins with the importance of the procedures of voting, voting rights, and individual freedoms that were denied to them by the Japanese colonists as a way of legitimising citizenship and nationalist identity above socialist ideology.
North Korea's Constitution might have been more of lip-service to the USSR than an actual subscription to communism. For North Korea, the most important and urgent task was to consolidate both Koreas under one government rule. In Chapter 9, Article 103, it says that ‘the capital of the DPRK is the city of Seoul', which implies North Korea's unification policy as the single most important priority-nationalism over socialism. Abiding by socialist ideology and making the entire Korean peninsula a communist country were secondary to unifying the Korean people under the political identity of Kim Il Sung.One of the most important discursive constructions of the 1948 Constitution is reflected in the terminology of the people under the word inmin, which signals a drastic departure from the definition and terminology of people/workers (trudyashchiesya) used in the Soviet Constitution of 1936 and separates the North Korean people from the South Koreans, further amplifying the legal fiction of national unity reflected in both founding constitutions. The etymology of inmin in Chinese characters is a person (in) as a subject in a nation (min). Originally, the term min meant servants, slaves, or subjects of the monarch. In the South Korea Constitution, ‘people’ are referred to as gukmin, which means a subject (min) of the country (guk). Both countries refer to their citizens as national subjects, those who are ethnically and nationally Korean. In other words, the genesis of the term inmin that emerged in North Korea ‘was premised on nationalism rather than Marxism’ and adopted an ‘inclusive - rather than class-based - definition of peoplehood’.[328] Thus, inmin exemplifies the North Korean regime’s understanding and construction of nationalism over the economic ideology of Marxism-Leninism.
Since 1948, the North Korean Constitution has been amended and replaced several times and these constitutional amendments afford an equally revealing portrait of the inherent and changing realities and struggles of the nation.
One of the greatest constitutional shifts in North Korea’s legal history officially took place on 27 December 1972 when the SPA effectively replaced the first Constitution and ratified the Socialist Constitution of the Democratic People’s Republic of Korea. The need for a new constitution was apparent and overdue since North Korea entered its socialist community in 1948, which represented a profound transformation of North Korean society where the 1972 Constitution ‘stipulates in detail the principles to be observed in political, economic, and cultural life’.[329] The increasing demand for a new constitution was expressed by Kim Il Sung himself at a speech he gave before the first session of the fifth SPA on 25 December 1972, where he declared thatour situation today urgently demands the establishment of a new Socialist Constitution to give legal force to the tremendous achievements of our people in the socialist revolution and building of socialism and to lay down the principles of the political, economic, and cultural features in socialist society.[330]
In both of these speeches, Kim Il Sung emphasised the cultural transformation that needed to take place to secure his political position.
II.