Context and Causes for Making a Constitution
A. Context
In the late nineteenth century, there was a monarchical state called Choson which lasted for nearly 500 years on the Korean peninsula. Choson was a centralised bureaucratic country whose governing principle was Confucianism.
Its northern territory was bordered by China and Russia, and the eastern border, across the Eastern Sea, was close to the neighbouring country Japan. Choson faced war that sprung from Japan's invasion in the sixteenth century, but they resumed the cultural exchanges afterwards and maintained a neighbourly relationship. At the end of the nineteenth century, however, Japan carried out aggression against Asian countries for imperialistic expansion and, particularly, occupied the Korean peninsula through a set of coerced unequal treaties. The 1905 treaty extorted the foreign affairs power from Korea, and the 1910 treaty annexed the Korean peninsula to the Japanese Empire; both were forcefully concluded surrounded by Japanese armed forces, without the Korean Emperors' seals.[91] The Korean scholarship generally considers both treaties as procedurally illegal, thus null and void.6 Nevertheless, Japan executed a harsh and oppressive rule by establishing the Japanese Government-General of Korea. The Koreans strenuously resisted this ruthless military rule and violence and struggled for national freedom in several ways.In Korean history, 1 March 1919 became a watershed moment. A series of large-scale protests started on 1 March 1919 and lasted until the end of May across the country and also overseas, crying for ‘Taehan Tongnip Mansae! [Hurray for the Independence of Korea]’. It is called the ‘March 1st Movement’. On the first day of the historic movement, 33 national leaders announced ‘The Korean Declaration of Independence’ in front of the crowd, starting with the following:
We hereby declare that Korea is an independent state and that Koreans are a self-governing people.
We proclaim it to the nations of the world in affirmation of the principle of the equality of all nations, and we proclaim it to our posterity, making it preserve in perpetuity the right of national self-existence.The Korean people’s will to restore national sovereignty was manifest in protests. More than two million Korean people, regardless of age and sex, rank and class, religion and thought, participated in the protests to proclaim the illegality of the annexation treaty and the independence of Korea. Such a nationwide movement gradually ripened and finally exploded at a special opportunity.
Ideologically, at least, back in July 1917, a group of revolutionists and intellectuals announced the ‘Taedong Dangyol Sonon [Declaration of Great Unity and Solidarity]’ proposing an establishment of a provisional government to proceed with the independence movement effectively. The declaration presented a unique theory of popular sovereignty that, although imperial Japan occupied Korea and dethroned the Korean Emperor by force, the sovereignty of Korea shall never perish nor be passed to non-Koreans; rather, the sovereignty renounced by the Korean Emperor shall be handed over to the Korean people. Thus, they argued for the urgent need to establish a provisional government as an organ to unite and rule Koreans by their own constitution based on the sovereignty of the Korean people. Scholars recognise that the idea stated in the 1917 declaration provided a theoretical background to lead the independence movement, and contributed to the March 1st Movement.7
In addition, the notion of national self-determination proclaimed by the US President Woodrow Wilson in early 1918 also inspired the Korean independence
also refused to sign the Japan-Korea Treaty of 1910. The then-Prime Minister of the Korean empire, however, concluded it eventually.
6 For the historical records to prove the illegality of the treaty-making process between two parties, see Tae-Jin Yi, Ilpon ui Hanguk Pyonghap Kangche Yongu [Study on Japan’s Forced Annexation of Korea] (Jisik-Sanup Publications Co, 2016).
7 The declaration asserted national continuity, identified the Korean people as a holder of popular sovereignty and associated it with a concept of constituent power of the Korean independent state. activists. It influenced them to decide to publicise the Korean people's strong desire for national independence to the world. However, in January 1919, as the former Korean Emperor Gojong suddenly died, rumours circulated that Japan had poisoned him. Thousands of people lamented and gathered in Seoul,[92] the capital city, to participate in Gojong's funeral scheduled on 3 March. It enabled many of them to join the protests.
Thus, the outburst of the Korean people's will for independence in the March 1st Movement led the national leaders and activists to resolve to found an independent Korean government predicated on popular sovereignty. They expected it to be an effective platform for the sustainable independence movement and proclaim a legitimate ground for the national sovereignty of the Korean people. On 10 April 1919, the independence activists (representatives of 13 provinces) established a government in exile, the ‘Provisional Government of the Republic of Korea' in Shanghai, China. They convened the Provisional Assembly as representatives ‘under the mandate of the whole Korean people'.[93] This assembly firstly decided on the name of the independent state as ‘Taehan Minguk’ implying a state of the people, not of a monarch. Then it organised the governmental framework and made a founding constitution. After an all-night discussion, they enacted a ‘Provisional Charter of the Republic of Korea' comprising 10 articles. Article 1 declared the name of the state and establishment of a republic: ‘Taehan Minguk [The Republic of Korea] shall be a democratic republic’.
This was a constitutional moment signifying the end of the era of a monarchical state and the start of a (democratic) republic for the first time in Korean history.
It was a founding moment for the Koreans who recognised themselves as free independent people against any oppression (within and outside).[94] They evolved from governed subjects to governing people. Therefore, the March 1st Movement should be evaluated as a revolution wherein millions of Korean people took political action, expressing their status as sovereign and opposing the existing order.[95] It motivated the Korean people to establish a new constitutional order, a Republic, thereby transforming an old state into a modern nation-state. In article 1 of the 1948 Constitution after liberation in 1945, the same phrasing from article 1 of the 1919 Provisional Charter was used, declaring a ‘democratic republic’[96]Article 2 of the Charter provided that the Provisional Government shall rule according to the resolution of the legislative body, the Provisional Assembly, and article 3 affirmed equality for all people regardless of sex, rank and wealth. Fundamental human rights were guaranteed by article 4, and article 5 provided the right to vote and be elected. Article 9 abolished capital punishment, corporal punishment and licensed prostitution. Despite its simplistic form, it contains core elements of modern constitutionalism such as popular sovereignty, separation of powers and constitutional protection of rights and equality, so it can be said to be the first modern Constitution for Koreans,[97] which founded the first republic for the Korean nation.
Almost simultaneously, several provisional governments were established by independence activists in and out of the Korean peninsula. In the months of 1919, they merged into the Provisional Government established in Shanghai to form a united Provisional Government of the Republic of Korea (KPG). This led to the first amendment of the Charter, on 11 September 1919, renaming it ‘Provisional Constitution of Republic of Korea' and developing it into a more comprehensive and systematic text comprising a Preamble and 58 articles. The united KPG maintained its constitutional system until returning to the homeland in 1945 by revising its Constitution four more times.[98]
B.
CauseAround the late 1930s, the entire Korean peninsula was being severely exploited by Imperial Japan during World War II. Overseas, the KPG accelerated struggles for national independence by both diplomatic means and an armed fight. The KPG formed a national army, ‘Hanguk Kwangpokkun [Korean Liberation Army]', with a plan to join the Allied forces to liberate Korea. After Italy officially surrendered in September 1943, the prospects of the Allied forces' victory became gradually certain. In December 1943, the so-called Cairo Declaration announced by leaders of the US, UK and China stated that ‘in due course, Korea shall become free and independent'. In May 1945, Germany also surrendered, and on 15 August, Japan unconditionally surrendered to the Allied forces, providing an opportunity for Korea to liberate itself from the 36-year tyranny of Japanese imperialism. However, Japan's sudden surrender brought about unexpected confusion for the Koreans and the Allied forces in dealing with post-war problems. Meanwhile, Korean political leaders from various groups were preparing to establish an independent government as planned and forming political organisations, while the Japanese occupying authority was confused about what to do in Korea. Just then, the US and Soviet armies appeared on the scene.[99]
The Soviet Union forces entered the northern part of Korea in August 1945, and the US forces entered the southern part in September 1945 respectively, allegedly for disarming the Japanese troops located in the Korean peninsula. Although it initially seemed a temporary military mission, they soon turned into new occupying armies, contrary to the Korean people's expectations. The Soviet Union and the US agreed to divide the southern and northern parts of Korea with an arbitrarily drawn line and started a military occupation. The United States Army Military Government in Korea (USAMGIK) was established and proclaimed under the name of Commander-in-Chief of United States Army Force, Pacific, that he would exercise all governmental powers within southern Korea, and ordered all individuals to obey his authority.[100] Furthermore, the USAMGIK refused to recognise the status of political organisations formed by Korean political leaders in preparation for a fully independent government.
It even disallowed KPG's return to the homeland with the capacity of a legitimate government.[101] Then, repatriated KPG members, although not as a governmental authority, conducted political activities through the Korea Independence Party (KIP), the ruling party of the KPG.In post-liberation Korea, various conflicts dramatically exploded. The USAMGIK was strongly supported by conservative anti-communist and political groups, especially the Korea Democratic Party (KDP), and co-existed uncomfortably with the left-wing and communist parties. However, the most troublesome seeds were sown by the USAMGIK itself. Since Washington and the USAMGIK had no previous knowledge of Korean history and its capacity for self-ruling,[102] it hired many Japan collaborators as its administrative officials and judicial bodies. Seemingly a simple pragmatic decision, it became a heavy burden on the implementation of tasks of the Constitution enacted later.19 Therefore, in the Korean peninsula, various aspects of conflict such as between the nationalist leaders and the USAMGIK, between the right-wing and left-wing political groups, and between the military governments of the US and Soviet Union were sharply developed.
Another external factor exacerbated the conflict. Near the end of World War II, the Allied forces discussed the idea of trusteeship of Korea. After the war, the resolution of the Moscow Conference held in December 1945 stated that Korea would be put under a five-year trusteeship, during which a provisional Korean democratic government should be established to prepare for a permanent and fully independent government with oversight by the US-Soviet Joint Commission. The Korean people were fiercely enraged and opposed to the plan. For the Koreans who had their self-government for nearly two thousand of years before the illegal occupation of Japan and had taken full independence for granted after the withdrawal of Japanese military forces, it was humiliating and frustrating to be under another country's tutelage again.
This issue decisively split domestic political groups in the post-liberation period and shaped the future political landscape.20 At first, all political groups opposed the Moscow plan: right-wing groups (including Rhee Syngman and the KDP) and the KPG groups (represented by Kim Gu) led the anti-trusteeship movement. However, later the leftist political parties changed their position and led a pro-trusteeship campaign. Meanwhile, as specified in the Moscow plan, in early 1946, the US-Soviet Joint Commission was created to support the establishment of the interim government of Korea. Almost simultaneously, the KPG leadership convened an ‘Extraordinary People's Assembly' to avoid trusteeship and prepare for an independent government. After being renamed ‘The Korean Representative Democratic Council of South Korea' in February 1946, it continued to work on drafting a constitution and other legislation.21 While the US-Soviet Joint Commission adjourned, the USAMGIK promoted a left-right coalition and launched the ‘South Korean Interim Legislative Assembly (KILA)' nominally to prepare the legislations of the established government in the future.
The US-Soviet Joint Commission failed to bring about effective discussion and which broke down in a row until July 1947. Thereupon the US referred the Korean issue to the UN. The Soviet Union suggested the immediate withdrawal of foreign law. Ernst Fraenkel, ‘Korea - ein Wendepunkt im Volkerrecht?' (1951) in Alexander v. Brunneck and others, ibid 494-95.
19 Moreover, the US prioritised preventing the Soviet occupation of the Korean peninsula as well as the establishment of a left-wing government rather than the democratic reform of the colonial ruling structure. To this end, the USAMGIK utilised the ruling system (including its experts) as it was. Chan Pyo Park, Han-kuk-ui kuk-ka-hyong-song-kwa min-chu-chu-ui [State-building of Korea and Democracy] (Korea University Press, 1997) 42-46.
20 For details, see Ki-baik Lee (n 15) 377.
21 Su-Yong Kim, ‘Urinara Honpop ui Chechong Kwachong kwa T'ukching' [The Making Process and Characteristics of the Korean Constitution] (2012) 5 Gachon Law Review 57, 68. troops from the Korean peninsula and the Korean representatives’ attendance at the UN General Assembly. In contrast, the US insisted on a general election in both occupied territories under the observation of occupying forces. The UN General Assembly then passed a resolution[103] calling for the election to be held in the Korean peninsula, no later than 31 March 1948, under the observation and consultation of a United Nations Temporary Commission on Korea (UNTCOK) for electing representatives of the Korean people to constitute a National Assembly. In January 1948, the UNTCOK entered Seoul to begin its job, yet it failed to enter the northern part of Korea, facing the Soviet Union’s non-cooperation. The US re-submitted a revised proposal for a separate election in the southern half of Korea to the UN in order to unravel the situation. The resolution to hold an election only in the accessible part, viz the southern half of Korea, was passed on 26 February 1948. It provoked severe conflict among political groups in southern Korea. The KPG nationalist groups and KIP (led by Kim Gu) vehemently opposed it in fear of an irreparable division of the nation, whereas pro-USAMGIK groups and KDP affiliation accepted the resolution to establish the sole South Korean government.
III.