Substances and Principles of the 1948 Constitution
The Constitution of the Republic of Korea of 1948 (‘the 1948 Constitution’) was the product of history. As Kim Lane Scheppele wrote that although the constitution drafters/makers may look for many references for ideal models, ultimately, they react to ‘what they take to be the crucial histories of their own countries’,[121] a new constitution is a blueprint for the new future and also a reflection of the national history.
The 1948 Constitution, as a platform for the re-establishment of the Republic of Korea, entrenched some distinctive elements reflecting the national history and its constitutional identity.A. Guiding Principles
When creating a constitution, the framers tend to entrench the key orientation of the constitution or the state’s identity at the beginning of the constitutional text. Article 1 of the 1948 Constitution provides ‘The Republic of Korea shall be a democratic republic’, implying the foundational principle of the 1948 Constitution. Notably, this provision followed article 1 of the KPG’s 1919 Constitution which was passed amidst the March 1st Movement in 1919 (described above in section II). Along with article 1, the 1948 Constitution’s Preamble stating that ‘We the People of Korea, resplendent in long history and tradition, inherit the great independence spirit which established the Republic of Korea through the March 1st Movement and proclaimed to the world, and hereby in reestablishing a democratic independent state, clarifies the constitutional identity of the 1948 Constitution.[122] It declares that the Korean constitution-making in 1948 aimed to not only establish an independent Government of the Republic of Korea but also to re-establish the democratic republic which was already established in 1919. A determination on a democratic republic as a state form first declared in 1919, was left unchanged in several constitutional drafts until 1948.
Therefore, the text of article 1, the Preamble, and the underlying context of the 1948 Constitution all together connote that the ‘democratic republic’ which was eventually revitalised through the enactment of the 1948 Constitution is a coherent and guiding principle of the Korean constitutional order.Article 5 represents, according to Yu Chin-O, the salient feature of the 1948 Constitution.[123] Article 5 states ‘The Republic of Korea shall respect and guarantee liberty, equality, and creativity of each individual in all areas of politics, economy, society, and culture, and is obliged to protect and arrange them for enhancing public welfare’. At the first Plenary session of the Constitutional Assembly, Yu delivered a framer’s note that the 1948 Constitution was conceived as a fundamental scheme to ‘guarantee a society where 30 million[124] Korean people and their generations would live equal lives in all areas’[125] and the ‘underlying spirit of the 1948 Constitution sought to harmonise political democracy with social and economic democracy’.[126] Yu noted that this provision specified that the state should go beyond formal respect for individual liberty and creativity, and is obliged to actively protect and coordinate it through state power, thereby protecting the economically weak as well as controlling the excessive freedoms of the economically strong, in order to uphold the principle of equality.[127] Therefore, the 1948 Constitution was intended for a socialistic economic order with the state’s intervention in the capitalist market economy, and that was further embodied in property and economic order provisions and the acceptance of basic social rights in the Constitution, as seen below.[128]
The territorial sovereignty on the Korean peninsula and the fundamental perception of the relationship between South and North Korea can be found in article 4. Territory provision did not first appear in the 1948 Constitution, but already appeared in the KPG Constitutions that stated old Korean land was the Republic of Koreas territory.
Meanwhile, article 4 of the 1948 Constitution provides that ‘The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands, which was suggested in the Yu Chin-O Draft and passed in the Constitutional Assembly without serious objection. This provision indicates that the entire Korean peninsula including the northern half falls under the 1948 Constitution’s jurisdiction, despite the election to constitute a Constitutional Assembly only being held in the southern half of Korea. Regardless of the actual political situation, the drafter commented that this provision was intended to stipulate that the 1948 Constitution would not only take effect in South Korea, but in the entire indigenous territory of Korea, and the need for constitutional revision in case of acquisition and loss of the territory. Therefore, article 4 indicates explicitly the constitutional identity as a legitimate Constitution for all Koreans on the one hand, and historical continuity from old Korea through the KPG period and to the era of the South Korean Constitution with the same territory on the other.[129]B. Rights and Values
The 1948 Constitution includes a bill of rights under Chapter II ‘Rights and Duties of Citizens’. Yu Chin-O designed this chapter to refer to Georg Jellinek's theory of status, and classified individual rights and duties into four categories: the right to liberty; right to benefit; right to participate in politics; and basic duties.[130] Articles 8 to 28 enumerate basic rights and their protecting scheme, while articles 29 and 30 provide basic duties.[131] Some distinctive features are as below.
First, a special emphasis on equality is identified. Article 8 was at the top of the list of basic rights, stating the equal treatment of all citizens, regardless of sex, religion and social status, and the repudiation of any privileged class in society. A special emphasis on equality is already found in the Constitutional Charter of KPG in 1919.
The Charter’s bill of rights started with article 3 (‘The people of the Republic of Korea shall be all equal, without any class system based on sex, rank and wealth’), and article 5 guaranteed equal suffrage between men and women. Behind such groundbreaking provisions - considering it was only 1919 - there were ideological and experiential influences. One of the most influential thinkers was Jo So-Ang, a prominent independence activist and theorist for the KPG. While various political ideas were introduced and vied with each other after the March 1st Movement, Jo tried to theorise a political thought unique to the Korean context with an emphasis on equality, or egalitarianism. His early thought greatly influenced the drafting of the 1919 Charter, and, later, it was developed into the ‘Doctrine of Three Equalities’ which was explicitly accepted by the KPG.[132] On the other hand, the fact that many women and girls actively participated in the nationwide March 1st Movement and sacrificed themselves was also influential. By doing so, they made their presence felt in the nation-building process at such a revolutionary moment. That led to the first constitutional text engraving the equal treatment of men and women in 1919, which was inherited in the 1948 Constitution. Yu Chin-O underlined sexual equality enshrined in article 8 of the 1948 Constitution on account that it was, compared to leading democracies allowing women’s suffrage only after World War II, innovative to immediately ensuring equal treatment between sexes in a nascent democracy such as Korea.He also expected article 8 would provide the constitutional basis to nullify existing sexist regulations and orders.[133]
Second, a list of basic social rights was incorporated. As mentioned, the 1948 Constitution was based on the idea of political liberalism but also embraced socialist thought. At that time, many intellectuals were affected by socialist thought from Europe. The framers involved in 1948 constitution-making, including Yu Chin-O, were also influenced by comparative materials; especially various constitutional documents ofsocialist countries that had been known until then, and the Weimar Constitution of 1919 which was based on the liberalism and democracy of the nineteenth century mixed with an ideology of social state (Sozialstaat) of the twentieth century, incorporating the social rights catalogue in the constitution for the first time in history.
The aforementioned Jo So-Ang’s Doctrine of Three Equalities was also a big influence on the 1948 Constitution and helped to embody various social rights. As a consequence, the 1948 Constitution sought a welfare state, despite poor socio-economic fundamentals around 1948. Therefore, articles 16 to 20 of the 1948 Constitution enumerate social rights in the form of concrete individual rights, not abstract goals of the state. Article 16 provides the right to equal education and compulsory primary education, article 17 the right and duty to work and article 18 the labourers’ three primary rights and the right to an equal share in profit between labourers and private enterprise. Article 19 obliges the state to support people incapable of earning a livelihood, and article 20 provides equal rights for both sexes in marriage and special protection for the marriage and family.C. Governing Mechanism
The most controversial and seriously debated part of the new Constitution was the government form. The drafters and the Drafting Committee originally came up with a parliamentary system accompanied by a ceremonial President. To avoid the risk of dictatorship and focus on a stable government, they favoured the positive aspect of the parliamentary system in which inevitable conflicts between the executive and legislative branches can be resolved through institutional means such as a vote of no confidence and dissolution of the Parliament, instead of revolution or coup.[134] However, strong advocates of the presidential system, particularly Rhee Syngman and his followers, emphasised the ‘stability of a political situation during the fixed term’ and ‘quick and effective decision-making’ for a newly independent state. After twists and turns, the latter gained support through political leverage, and the Drafting Committee had to modify the draft.
As a consequence, the 1948 Constitution adopted a presidential system where the President, elected by the National Assembly with a fixed term, becomes the head of the executive branch and the Vice-President with the same term as the President will serve as an acting President in case of emergency.[135] However, the governing structure was a bit different to the typical presidential system; since the form of government in the original draft was abruptly changed by editing each provision pertinent to the parliamentary system, some elements of the parliamentary system remained with mistakes or some expectations.
For example, besides the Vice-President, the Prime Minister was also assigned to assist the President and control the administrative branches.[136] The 1948 Constitution set out that the Prime Minister is to be appointed by the President with the consent of the National Assembly without a fixed term and to serve as a vice-chair of the State Council, a presidential cabinet. However, as the Prime Minister was not granted the substantial power shared with the President, it was not equivalent to the status of the Prime Minister in the semi-presidential system. Another example - irregular to the presidential system - was the ‘State Council' in which important state policies vested in the presidential power, listed in article 72, were to be deliberated and decided. The State Council was composed of the President as a chairperson, the Prime Minister and cabinet members.[137] Yu Chin-O highlighted the State Council's role as one of the distinctive features of the Korean presidential system, compared to the American one, in that it was devised to preclude the President's sole decision by requiring the State Council's prior deliberation and vote.[138] However, it did not work as expected (see section V).
As such, the government form adopted in the 1948 Constitution features a ‘hybrid form of government' or ‘hybrid form of presidential system'[139] viz a presidential system mixed with considerable elements of the parliamentary system. But, the combination of the two systems seems to not bring about synergy but rather increased concerns about the former. Most of all, the mechanism for democratic political accountability that is a key element of the latter was not envisioned in the constitutional design. There were no proper means to hold the Government, precisely the President, accountable for political misbehaviours, nor to resolve conflicts between the Parliament and the Government. Certainly, the National Assembly was authorised to impeach the President, Vice-President, Prime Minister, members of the State Council and other public officials for their illegal performance of official duties.[140] Further, the 1948 Constitution established a separate Impeachment Court to adjudicate the impeached officials, consisting of five Justices of the Supreme Court, five National Assembly members and the Vice-President as chair.[141] However, such an impeachment procedure was rather an exceptional process, not a part of the ordinary political process. Hence, as the drafters were worried, the governing mechanism of the 1948 Constitution was not successful in restraining presidential power (see section V).
D. Judicial Review
The institutional design for judicial review was one of the distinctive elements of the 1948 Constitution. Constitutional debates until 1948 generally agreed on the introduction of a judicial review system to a new constitution. Therefore, the Constitution Drafting Committee discussed which organ should be given authority to review the constitutionality of laws enacted by the legislature. The drafters recognised that the established judiciary roused antipathy during the Japanese occupation, and thus seemed like a remnant of the former period.[142] Given that the legal personnel was accustomed to the so-called colonial laws and cases, the legislators found it hard to accept such courts could nullify laws enacted by the representatives of the people in the post-liberation era.[143] Therefore, the Drafting Committee invented a special institution called the ‘Constitutional Committee', perceived as different from a typical court. Considering its centralised jurisdiction of constitutional review, it seems closer to the European constitutional court system; however, its composition made it closer to a combination of the German and French systems. The Constitutional Committee was comprised of a Vice-President as its chair, five Supreme Court justices and five National Assembly members. The composition of the same numbers from the judiciary and the legislature was designed to ensure fair decisions with the avoidance of superiority of either branch.[144] While the constitutionality of the administrative decrees and regulations were reviewed by the Supreme Court, ordinary courts were made to request the Constitutional Committee to decide on the constitutionality of laws that should be applied in the pending cases.[145] During its operation until being abolished by the third constitutional amendment in 1960, the Constitutional Committee reviewed six cases, of which two were declared unconstitutional.
E. Dealing with the Past
The 1948 Constitution codified a commitment to a historical liquidation. It has been a significant task for the Koreans ever since liberation.[146] However, the task was challenged by a pragmatic strategy of the US occupying authority: the USAMGIK let the former public officers who were appointed by imperial Japan stay in the administrative offices and even hired the former Japan collaborators.
In 1947, the KILA under the USAMGIK drafted and passed a special bill to punish ‘national traitors' and ‘pro-Japan collaborators, yet the bill failed to take effect. But later, the Election Law (USAMGIK Ordinance No 175) enacted in 1948 to elect the Constitutional Assembly limited the suffrage of such collaborators referring to the categorisation of the previous KILA bill. Finally, the Constitutional Assembly incorporated article 101 into the new Constitution, stating: ‘The National Assembly which enacted this Constitution may enact a special law to punish vicious anti-national acts committed before 15 August 1945'. It created a constitutional basis to punish the anti-national actors, especially pro-Japan collaborators, retroactively.
During the deliberation of the Constitution-making process, a couple of issues were raised. Some claimed that such a provision would contravene the prohibition of the retroactive punishment principle. It was also debated how to deal with the profiteering acts committed after 15 August 1945 and the anti-national activities committed after the liberation until the constitution's enactment. The Assembly fixed 15 August 1945 as the cut-off date for recognizing anti-national activities.
V.