Process and Features of Constitution-Making in 1948
A. Process
General steps for making a new constitution, differently from ordinary amendment procedure, may progress as follows: (a) arrangement of the rules and mandate organ; (b) creation of a constitutional draft; (c) deliberation and modification; and (d) approval and promulgation.
Considering this order, this section illustrates the actual constitution-making process carried out in 1948 in South Korea.A procedural arrangement was required in the run-up to holding an election. The Election Law was enacted in the form of the USAMGIK Ordinance No 175 and enforced on 17 March 1948. The law enfranchised people over 21 years old, regardless of sex, wealth, education and religion,[104] while disenfranchising Japan collaborators and ex-governmental officials during the Japanese occupation.
The first general election of Korea to constitute a constituent assembly (hereinafter ‘Constitutional Assembly’[105]) took place on 10 May 1948, with a higher-than-expected voter turnout. More than 95 per cent of the registered voters' list participated in this historic election. Putting aside the 100 seats for people located in the north, who could not participate, the election was held to fill the 200 seats in total. Nevertheless, the leftist-wing groups and proponents of the unified Government, mostly nationalists and the former KPG leaders, boycotted the election. Under a single-member district system, 198 of 948 candidates were elected to the Assembly. Two districts in Jeju Island failed to hold the election because a conflict between the police and the residents had exploded just one month before, known as the ‘Jeju April 3 incident'.
The seats of the Constitutional Assembly were filled with 85 candidates unaffiliated with parties, 55 members of the National Association for the Rapid Realisation of Korean Independence (NARRKI),25 29 members of the Korean Democratic Party (KDP),26 12 members of the Daedong Youth Corps and six members of the Korean National Youth Association.
The remaining seats were distributed to various political parties and organisations.27The Constitutional Assembly opened on 31 May 1948 with 198 members for a two-year term.28 The prime and most urgent task of the Assembly was to make a constitution. At the first session on the same day, Rhee Syngman was elected as chairman and Shin Ik-hee and Kim Dong-won were elected as vice-chairmen. On 1 June, at the second plenary session, the Assembly discussed how to organise the Constitution Drafting Committee. As a first step, they chose 10 members representing each province for the Selecting Committee that selected the members of the Constitution Drafting Committee.
The following day, at the third plenary session, the Selecting Committee announced the final list of 30 members for the Constitution Drafting Committee. The selection criteria were reported as region, ability and party affiliation.29 Ten members were from NARRKI, eight from KDP, two were inclined towards both NARRKI and KDP and, finally, 10 were independent or belonged to other groups.30 On 3 June, the Constitution Drafting Committee appointed 10 additional expert advisers.
transformed into the general Parliament, viz the first National Assembly. Hence, in this chapter, I call the constituent assembly in the process of constitution-making ‘Constitutional Assembly, and the same body after the enactment of the first Constitution as the ‘National Assembly'. For more, see section B below.
25 It was headed by Rhee Syngman and Kim Gu when launched in early 1946 as an alliance of political organisations, based on the anti-trusteeship movement. In the initial phase, it gained wide- ranging support from parties including the KDP, the KIP and a faction of the Communist Party. However, the Communist Party later withdrew its support and later Kim Gu and other groups left when Rhee called for a separate election in the southern part of the country. Hence, as of 1948, it was a right-wing political association supporting Rhee.
26 It was an anti-communist and conservative rightist party.
27National Election Commission, Election statistics, available at http://info.nec.go.kr/ (listing winners of the general election).
28 USAMGIK Ordinance No 175, article 47.
29 For details, see Hee Kyung Suh (n 13) 280-83.
30 ibid 279. Please note that some literature shows different figures based on the party affiliation registered as of election day.
The timeline for drafting was tight because the date for declaring the establishment of the Government was scheduled for 15 August.[106] However, this was not a problem because numerous attempts and experiences for making a constitution had accumulated since 1919.[107] For instance, in addition to the KPG Constitutions, the Korean Representative Democratic Council of South Korea - organised in early 1946 by the KPG members and NARRKI - considered itself an interim government, and KILA - organised in December 1946 by the USAMGIK to support a politically centrist group - also drafted constitutional bills before.[108] These documents were submitted to the Drafting Committee for reference. Besides, Professor Yu Chin-O, a renowned constitutional law scholar, was experienced in drafting a constitution with the Department of Justice under the USAMGIK and finished a draft in early 1948. He was also involved in another group, the Administration Research Committee Association organised by Shin Ik-hee,[109] to work on drafting a constitution, and finally finished the so-called Yu Chin-O Draft on 31 May 1948. As a result, the Drafting Committee created a constitutional draft based on ‘Yu Chin-O and the Administration Research Association Joint Draft, generally known as ‘Yu Chin-O Draft' as a primary text and ‘Kwon Seung-nyol Draft'[110] as a reference text. Surely, the previous constitutional bills and foreign cases were also used as references.
The first reading started with a discussion on the constitution's general framework. After an intensive discussion from 4 to 6 June, on 7 June, the country's name was decided by vote as ‘Taehan Minguk [Republic of Korea]' the same as the Provisional Charter of 1919. On 10 June, the Drafting Committee discussed the form of government and the structure of the legislative branch, the National Assembly. It changed the bicameral system in the Yu Chin-O Draft into a unicameral system. Regarding the government form, while discussing the choice between the presidential and parliamentary systems, despite some supporters of the presidential system bursting on the scene, the Committee decided on the parliamentary system as designed in both drafts. The provisions regarding the economic order and appropriate organ for judicial review were particularly debated during deliberation.
However, the most dramatic last-minute change occurred in the governing structure. Rhee Syngman, a strong advocate of the presidential system, abruptly showed up at the Drafting Committee on the date scheduled to submit the final draft to the Constitutional Assembly. Rhee, who was an influential senior politician and expected to be the chief of the executive branch of a new government, threatened to launch a campaign against the new constitution unless his claim would be accepted. The drafters were worried that it would cause national disunity and instability that could ruin a successful launch of the new Government. They thought that political compromise with Rhee's political forces was inevitable, and decided to change the form of government to the presidential system. Therefore, in just one day, the draft was changed.
On 22 June, the Constitution Drafting Committee's final draft (Constitution Draft) was finalised. It was a product of16 meetings of the Drafting Committee. As the Constitution Draft was submitted to the Constitutional Assembly on 23 June, the first reading started.
The first reading for a Q&A session and general debate on the Constitution Draft, the second reading for an article-by-article discussion, and the third reading for the modification of the wording were scheduled. For careful perusal before the sessions, the first reading did not start until 26 June to give legislators time to review the Constitution Draft. When the session started, the Assembly members initially discussed the framework, such as the country name, government system and structure of the National Assembly. They generally agreed on the framework of the Constitution Draft. Considering domestic and international situations, they were inclined more to the interests of ‘effective and powerful executive power' than those of the ‘collaborative operation between the legislature and the executive branch' and ‘checks and accountability'. The time factor also seemed crucial to conclude the debates, because they had fears of an unexpected aftermath in case of delayed constitution-making.[111]The second reading began on 1 July. Various modification points were discussed during the article-by-article discussion. The most notable debating points were[112] whether to modify the Preamble, the subject of rights (from ‘people' to ‘nation'), the scope of mandatory education, workers' right to an equal share in profits, the structure of the National Assembly, marriage provision, presidential election method, nationalisation of important resources, distribution of land and forest, punishment of Japan collaborators and handling of enemy property, among others. Debates were very intensive, but no major changes were made to the Constitution Draft. The second reading was concluded on 7 July.
The Constitutional Assembly passed the Constitution Draft without major corrections to wording at the third reading on 12 July. The approval was obtained by the representatives’ vote on the whole draft of the constitution comprising 103 articles. Finally, the Constitution of the Republic of Korea was promulgated on 17 July, after the signature of the Assembly’s chairman, Rhee Syngman.[113] Accordingly, the longstanding project of founding a democratic republic by making a constitution that had already begun in 1919 was accomplished.
On 20 July, according to the Constitution, the first National Assembly elected Rhee Syngman as the first President and Yi Si-yeong as the first Vice-President of Korea, thereby forming the Government of the Republic of Korea. On 15 August 1948 (the third anniversary of liberation from Japanese occupation), a grand congratulatory ceremony was held as planned to proclaim the establishment of the Government of the Republic of Korea.
B. Features
The path and the actual process of constitution-making in South Korea have some salient features that must be acknowledged.
First, the 1948 Constitution was passed by the constituent assembly elected by the people. There are traditional and contemporary exemplars of the constituent assembly. For the former, the Assemblee nationale constituante of 1789 and the Philadelphia Constitutional Convention of 1787 created new constitutions triggered by revolutions; they were initially convoked for different purposes than constitution-making, yet later transformed into the constituent bodies over the revolutions.[114] For the latter, in contrast, recent constituent assemblies tend to be democratically composed with the explicit mandate of constitution-making: for example, South Africa in the 90s, Iceland in the 2000s and, recently, Venezuela and Chile. Comparatively, the 1948 constituent assembly in South Korea is close to the latter model, a modern version of the constituent assembly. It was constituted by the direct vote of the people under the mandate of constitutionmaking (Constitutional Assembly), and then, after the Constitution took effect, the Assembly turned into the regular legislature (the first National Assembly) as provided in the Constitution.[115]
Second, the work of constitution-making in South Korea was substantively independent of foreign involvement or imposition in substance. Considering the political context of the Korean peninsula, some scholars lay stress on the external influences in constitution-writing in South Korea.[116] However, external influences, or intervention, seemed relatively limited, looking through the autoch- thonic attempts since around 1919. The drafters and legislators were not given any constitutional draft from outside. Rather, the new Constitution was crafted, from drafting through deliberation to final approval, by the Korean legal experts and politicians as a result of decades of effort.[117] As described before, the KPG's initial act in 1919 was to create a constitution with a belief that national independence could be officially recognised through a constitution based on the popular sovereignty of the Korean people. The main drafter acknowledged that the KPG Constitutions greatly influenced the framing of the 1948 Constitution, and various constitutional drafts made during the USAMGIK period and foreign sources were used as references in the process.
Third, the problems of representation and legitimacy in the constitutionmaking process can be pointed out, since the Constitutional Assembly election was held only in the southern half of Korea, and moreover, important political groups - especially the KPG members and nationalists leaders - refused to participate in it. Thus, to dispel such concerns, the election was held to fill 200 seats, excluding 100 seats representing the northern half of Korea, from the originally scheduled 300 seats. Against that background, voter turnout reached more than 95 per cent, which showed great expectations for the role of the Constitutional Assembly which was explicitly mandated to make a Korean Constitution.[118] In fact, the legitimacy issue would be complicated when it comes to the relationship between South and North Korea. What is harder is that North Korea made its constitution and established a government separately.[119] However, it can be better understood only through structural explanation with a specific doctrine of the divided state,[120] which exceeds the scope of this chapter.
IV.