Implementation and Legacy
From a general perspective, constitutions require appropriate conditions to be successful: political environment; culture; socio-economic situation; and actors' experiences and capacities to operate constitutional arrangements.
The conditions set for the 1948 Constitution were considerably unfavourable in many ways. Moreover, the 1948 Constitution was born with various historical tasks and thus faced specific challenges in its implementation. For example, the task of liquidation of the past enshrined in article 101 was supposed to be implemented through the enactment of special retroactive law. Punishing the pro-Japan collaborators who betrayed fellow Koreans was long considered to correspond to a normative and moral value of restored Korea. To implement article 101 of the Constitution, a special committee was established in the National Assembly that passed the ‘Special Act to Punish Anti-National Act' in September 1948. Under the Act, the ‘Special Committee against Pro-Japan Traitors' investigated the pro-Japan and anti-national actors and referred them to the special prosecutor's office. However, there were serious obstacles to accomplishing this task. Under article 103 of the Constitution that allowed the public officials who had been working to continue their jobs, large numbers of former officials who were re-employed by the USAMGIK remained in office. They resisted and interrupted the liquidation process, and eventually the historical task broke down.[147]Dealing with North Korea was a significant task, too. To affirm article 4 stipulating that the national territory of South Korea encompasses the areas of North Korea and to prepare for the unification of North and South Korea, President Rhee, on 15 February 1949, appointed the governors of the five northern provinces of North Korea. One week later, he opened an ‘Office of the Five Northern Korean Provinces', as an administrative body for the local governments in North Korea, yet holding a symbolic meaning.
Despite this hope for unification, North Korea's invasion of the South in June of the following year plunged the two Koreas into civil war.However, the most severe criticism of the 1948 Constitution would come from the failure in living up to the Korean people's desire to have a democratic government. Unfortunately, President Rhee ran the Government against the constitutional mechanism as well as the drafter's conception of limited government. He was a highly renowned figure as an independence activist for several decades and a rare intellectual who studied at Princeton, thus he was also called the ‘father of the nation' among the Koreans. However, the 1948 Constitution failed to transform his charismatic leadership into institutional leadership. It is already evident in the scene where the constitutional drafter and politicians were overwhelmed by his charisma and ended up changing the structure of the governing system. Then, how could it ever be expected to control his presidential power under the constitution he forced to change? For instance, he never attended the State Council meetings and refused his obligation to promulgate the legislative bill re-passed by the legislature after his veto to the bill. Whenever he faced conflicts with the National Assembly, he used to directly appeal to the public (so-called ‘statement politics') instead of persuading the opposition. During Rhee's tenure, two of the Vice Presidents resigned one after another.[148] He even pushed for the first constitutional amendment to change the method of the presidential election amidst the war in 1952 and, in 1954, pushed for the second amendment to exempt the first President from the term limit. Both amendments were procedurally illegal and accompanied by physical force and violence.
Thus, the tragedy of the 1948 Constitution lies in that it eventually failed to restrict the arbitrary power of the head of government, who attempted to incapacitate the Constitution and ignore the Constitution’s dignity. It led to a call for a new constitutional moment. In 1960, citizens, mostly young students, invoked vehement protests against Rhee’s presidential dictatorship and the Government’s corruption.[149] It finally led to the collapse of the 1948 Constitution and the First Republic of South Korea - the ‘April 19 Revolution’.
VI.