Prepared by: ALFRED C OPPLER Legal Advisor Government Division G-5 (Civil Affairs) GHQ, FEC/UNC 9 April 1952
ROK CONSTITUTION AND GOVERNMENT
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I. HISTORICAL BACKGROUND:
Three nations were dominant in modem diplomatic history as competitors for the control of Korea: China, Russia, and Japan. China had exercised a strong political and cultural influence upon Korea.
By 1899, following the Sino-Japanese War, China was forced to accept Korea as a full independent state and to renounce all claims stemming from the former loose suzerainty. Subsequently, Russia succeeded in consolidating her economic position in the peninsula. Her efforts to weaken the growing Japanese grip led to the Russo-Japanese War and Russia’s defeat. The Treaty of Porthmouth (1905) gave Japan a free hand in Korea. With the acquiescence of England and the United States, she assumed a protectorate over Korea and within five years had, in spite of the bitter opposition of the Korean people, obtained political control which culminated in the formal annexation and integration in the Japanese Empire with the end of the Korean dynasty in 1910. The Japanese ruled with their usual colonial efficiency, exploitation, and strong police state methods. However, they were never able to win the people over. Independence movements did not cease to exist during the 35 years of Japanese domination.
During World War II, solemn pledges were made by the United States, the United Kingdom, the Soviet Union, and China that Korea would in due course become free and independent. The Cairo promise of 1943 was confirmed in the Potsdam Declaration. After the surrender of Japan, the peninsula was divided into a Northern and a Southern zone. The 38th parallel, fixed initially for purely Military purposes, assumed fateful significance in separating the two parts of the country politically and administratively and placing them under Military occupation of two different nations allied at first to each other, but subsequently developing mutual hostility of a gigantic scope.
To prevent the 38th parallel from becoming an impassable barrier to the unification of Korea, the Four Big Powers concluded an Agreement in Moscow December 1945, in which a trusteeship of these powers was visualized. It also provided for a Joint American-Soviet Commission to assist in the formation of a provisional Korean democratic government through consultation with “Korean democratic parties and social organizations.” The Commission net in Seoul in March 1946 and, after a number of sessions, adjourned in May without having reached any conclusion. The conferences were taken up after an exchange of communications between Secretary of State Marshall and Foreign Minister Molotov, but broke down again in summer 1947. The main reason for the failure of the Joint Commission was its inability to reach an agreement on the question as to the Korean consultees to be selected. After a proposal of the United States Government for a Conference of the Four Powers had been rejected by the USSR, the United States brought the matter up at the General Assembly of the United Nations which after careful consideration of the whole problem resolved to establish a nine-nation UN Temporary Commission on Korea to be present in Korea and to observe that the Korean representatives who should be consulted were in fact freely elected by the Korean people, that elections should be held not later than March 31, 1948, and that the National Government once established take over from the occupying powers. A proposal of the USSR that the occupying Armies be withdrawn and the Koreans allowed to establish a national government without outside assistance was rejected. The Commission arrived in Seoul in January, 1948. When it sent a communication to the Soviet commander of the Northern zone, he refused to accept it and the Commission was not permitted to function there. Faced with this situation, the Commission consulted the UN Interim Committee and was advised to implement the UN Assembly’s program in those parts of Korea which were accessible to it. Thus, elections to a National Assembly were prepared in South Korea by the US Commander, Lt. Gen. Hodge, under observation of the UN Temporary Commission. They took place on 10 May 1948 with approximately 75 percent of all eligible voters participating. The Commission heard the views of representative Koreans and made a number of recommendations for ensuring an atmosphere of freedom in the elections. Although critical of the conduct of the national police and the bellicose and intolerant youth organizations, the Commission finally adopted a resolution to the effect that “a reasonable degree of free atmosphere wherein the democratic rights of freedom of speech, press, and assembly were recognized and respected” had existed during the elections and that the results of the elections were “a valid expression of the free will of the electorate in those parts of Korea which were accessible to the Commission.”
The elected representatives convened on 31 May and elected as chairman Dr. Syngman Rhee, recognized as the rallying force in the independence movement and as forceful enemy of Communism. The Assembly proceeded to establish rules of procedure and to organize Committees. Its main initial task was the drafting and discussion of a Constitution for the Republic of Korea, which was adopted with amazing haste on 12 July and promulgated on 17 July.
It should be noted that seats proportionate in number to the population had been left vacant in the Assembly for the later participation of the people of the Northern Zone. However, at almost the same time another government was created under Russian sponsorship in North Korea. Both governments claimed Jurisdiction over the whole country.
II. THE CONSTITUTION OF THE ROK:
The predominant feature of the Constitution is the strong position of the executive branch of the government headed by the President of the Republic. With regard to governmental structure, the Constitution follows the American Presidential System. To be sure, the President is elected by the legislature, the National Assembly, for four years, but neither he nor his Ministers need the confidence of the Assembly and must resign in case of a non-confidence vote. The President must not necessarily be a member of the Assembly. On the other hand, different from the new Japanese Constitution and English tradition, the President has no power to dissolve the Assembly which is also elected for a term of four years. The Vice President, who acts for the President if the latter is unable to perform his duty and to whom other responsibilities of importance are assigned, is also elected by the Assembly and his term of office begins and ends simultaneously with that of the President. However, apart from the Prime Minister whom the President can appoint only with the consent of the Assembly, he may choose his Ministers at his free will and may dismiss all of them including the Prime Minister. The latter is merely the “first” minister with the duty to control and supervise the heads of the departments and to take charge of affairs not assigned to any particular department. He and his colleagues are only assistants to the chief executive. The state council acting as a collegiate body, is composed of the President, the Prime Minister, and the other Ministers and shall decide by majority vote on important national policies which come within the scope of the presidential powers. However, in the light of the power of the President to remove his Ministers, the possibility of his being overruled in. the Council is merely theoretical.
The President has the usual executive powers, as Commander-in-chief of the Army, with regard to diplomatic relations, appointment and removal of government officials, granting of amnesty and pardon, and bestowing of decorations and honors. He also nay veto legislation. However, his most far-reaching and possibly most dangerous prerogative is the authority to issue emergency decrees if there is no sufficient time for convoking the legislature. He may do so “when in time of civil war, or in a dangerous situation arising from foreign relations, or in case of a natural calamity, or on account of a grave economic or financial crisis it is necessary to take urgent measures for the maintenance of public order and security.” The orders or dispositions of the President under this authority must be reported without delay to the Assembly and lose their effect if the Assembly’s confirmation has not been obtained. This emergency power ominously recalls the notorious Article 48 of the German Constitution in the Weimar Republic, which was abused by Hitler to by-pass the Reichstag and establish his dictatorship. Still, it must be admitted that in the situation of continuous threat from international as well as domestic danger in South Korea, some such extraordinary power of the executive was needed. In addition, the President may proclaim a state of siege.
The legislature is unicameral. The National Assembly is elected by universal, direct, equal and secret votes of the people. It convenes each year for the regular session. In addition, the Speaker shall summon a special session upon request of the President or of not less than one fourth of the members. The Assembly has the right to consent to treaties and to declarations of war against a foreign state. The Prime Minister, ministers and their representatives, may attend the meetings of the Assembly, state their opinion, and answer questions. They must do so if required by the Assembly. The members enjoy immunity and can be expelled only with the concurrence of two thirds of the members durly qualified and seated. Qualified majority is also required for the impeachment of the President, the Vice President, ministers, Judges and other public officials determined by law. However, the Impeachment Court which is to render the decision is presided over by the Vice President and composed of five justices of the Supreme Court and five members of the Assembly as associate judges.
As to legislation, bills may be introduced by the members of the Assembly or the government. When enacted, the law shall be promulgated by the President. He has the right to veto it, but may be overruled provided that the Assembly confirms the bill on reconsideration by two thirds of the members present whose number must be at least two thirds of the elected members.
The Constitution is not too explicit about the third branch of the government, the judiciary. It merely states that the judicial power shall be vested in the courts composed of judges and refers to implementing legislation regarding the organization of the Supreme Court and the lower courts as well as the qualification of the judges. The Chief Justice shall be appointed by the President with the consent of the National Assembly. The tenure of the judges is ten years, but they may be re-appointed. Their independence is emphasized and their status guaranteed. The rule-making power of the Supreme Court is very limited. Most important of all, the courts have power of judicial review only over administrative orders, regulations, and dispositions, but not over legislation. Determination on the constitutionality of a statute is vested in a special Constitution Committee consisting of the Vice President as chairman, five members of the Supreme Court, and five members of the National Assembly. A decision holding a law unconstitutional requires a two third majority. It can easily be seen that this arrangement will make the invalidation of a law on constitutional grounds an exceptional event.
The two Articles dealing with local autonomous organizations do not guarantee any true local autonomy and do not make election mandatory, but refer to subsequent legislation on the subject. A Local Autonomy Law was promulgated on 4 July 1949. As yet, no election has been held under it, largely due to the present war. The law falls short of placing full self-government in the hands of the people. Provincial governors and the mayor of Seoul will continue to be appointed. Elections Under the Law have been announced for 25 April for cities, towns, and townships, while elections for provincial assemblies are planned after the establishment of the autonomous organizations on the lower levels. Whether and to what extent these elections will be the stepping stone to the development of a democratic self-government in the local entities remains to be seen.
Following the example of all modern Constitutions, the ROK instrument includes a Bill of Rights. The usual fundamental human rights are listed, such as equality before the law, freedom of religion and conscience, and certain safeguards in criminal procedure. However, most of these guarantees are seriously weakened, if not emasculated, by the modifying phrase “within the limits of the law”, similar in that respect to the guarantees of civil liberties in the Japanese Meiji Constitution, Consequently, any of them can be abridged by legislation so that the protection is granted only from administrative encroachment. This is particularly true of the freedom of speech, press, assembly and association as well as of the right of labor to collective bargaining and collective action. In the criminal process certain safeguards considered essential to a humanized law enforcement system are absent, for instance, prohibition of torture, which would have been particularly necessary in Korea, exclusion of confessions as evidence if they are the only proof of guilt, and a provision that nobody can be compelled to incriminate himself.
Finally, a Chapter on “Economy” is of particular interest because it envisages a considerable extent of state socialism or statism. Mines and other important mineral resources, water power and natural powers which may be utilized economically shall be owned by the State, which night for a limited period grant licenses to private persons. Furthermore, to meet urgent necessities of national life, private enterprises shall be transferred to state or public ownership, or their management shall be placed under control or supervision of the state or juridical persons of public law.
In connection with the Constitution, a Government Organization Law was enacted which established the necessary administrative agencies including departments or ministries, boards, offices and committees. There are at present thirteen departments, without the Prime Minister’s Office. In addition, certain agencies are under his Jurisdiction. I may mention the Office of General Administration in charge of problems of administrative organization, the Office of Public Information in charge of proclamation of laws and ordinances, public information, propaganda, statistics, printing, and copyrights, the Office of Legislation in charge of drafting and analyzing proposed bills and ordinances, the Planning Office, in charge of over-all planning on financial and economic affairs, industry, raw materials, price of commodities, preparation of the budget, and also civil assistance requirements, Office of Supply, in charge of receiving, warehousing, and distributing CRIK supplies, and the Office of Property Custody which plays a significant roll in connection with the former Japanese vested property. There are finally the Civil Service Commission, the Inspection Commission, and the Board of Audit, directly under the jurisdiction of the President.
III. RECENT DEVELOPMENTS:
Since the Constitution provided that the National Assembly, which enacted it, should continue as legislature for two years, the new elections took place on 30 May 1950. President Rhee’s supporters won only a Minority of the seats. The new Assembly met for the first time on 19 June 1950. As a result of the invasion, it was forced to move from Seoul to other locations, returned in October 1950, but had to leave again. The Assembly now continues to meet in Pusan. Its legislative activity has been intensive. Sixty bills were enacted into law, ten Presidential emergency decrees confirmed, and over 100 resolutions adopted. The laws enacted relate mainly to taxation, the financing of war expenditure, and security matters. An Administrative Litigation Law providing judicial procedure for the challenge of administrative acts is worthy of special mention.
Recently, a controversy arose as the President favors two constitutional amendments to which the Assembly is bitterly opposed: First, he wants direct elections by the people for the office of President, instead of the elections by the Assembly, and second, he desires to replace the unicameral by a bicameral system of legislature. Dissatisfied with the attitude of some of the solons, Rhee went so far as to threaten their recall, which indicates, to say the least, a cheerful disregard of the Constitution. No such right of expulsion or recall exists outside the Assembly itself. Certain efforts of the Assembly to exercise parliamentary control over the policies and actions of the executive have been noted in a Report of UNCURK, dated 5 September 1951. According to this Report, the Assembly during 1951 completed an extensive investigation into the functioning of the national administrative structure, watched carefully to see that the emergency powers be not abused by the President, brought abort the lifting of martial law in most of the territory, and insisted that the right of military courts to try civilians be limited.
A genuine system of political parties has not yet developed. There are at present five registered Parties, all of which have a nationalist approach and are opposed to communism. Otherwise, their respective arms and policies are not well defined and distinctions are not easily discernible in their platforms. There are also “patriotic organizations” which, although not officially affiliated with political parties, exert considerable political influence. The most important are the Great Korea Youth Corps and the National Society, which enjoy Government backing. The very militant Youth Organizations apparently serve as a kind of protective guard for the Government and occasionally use semi-terroristic methods of controlling and intimidating the people. Leftist and Communist groups are working underground and as guerrilla fighters.
IV. EVALUATION:
The Constitution and the Government of the ROK bear the impression of the personality of Syngman Rhee, who was elected its first President. While the Constitution is based on Western principles, it has serious weaknesses according to our own democratic standards. The power of the Chief Executive appears too excessive, fundamental human rights are not fully protected, there is no adequate judicial review of legislation, and local autonomy is not sufficiently guaranteed. As the situation is at present, the constitutional principles have not yet been implemented in the whole body of the law and are not much more than high-sounding standards for the guidance of the legislature. The tremendous difference from Japan is evident. The laws of both countries were identical in 1945. The codification, dating back to the Meiji Restoration, included the Civil, Commercial and Criminal Codes, Procedural Codes, and Court Organization Law, all of them following the German and French models of the later part of the nineteenth century and, looking at it from the continental point of view of that period, fairly advanced. However, they have many elements irreconcilable with the American-influenced modern Constitutions of both Korea and Japan. While in Japan a sweeping reform of these Codes has been carried out to implement the Constitution and fill it with life arid blood, no such fundamental changes have been made in Korea where, generally speaking, the legal system remained in the same condition as we found the Japanese legal system when the Occupation began.
More important than the written Constitution and laws, however, are the spirit and method of their application, which depend on the attitude of the rulers. The ROK has been called a totalitarian state, a dictatorship, and a police state. There is some justification for all these epithets, but based as they are on Western concepts, they are inappropriate to Korea. The central figure in her government is Dr. Syngman Rhee. He spent some 40 years in exile, mostly in the United States, where he devoted himself unceasingly to the cause of Korean independence. To the Korean people he is a legendary symbol of their independence and he enjoys the confidence of the overwhelming majority among them. However, he is now a man of 77 years, who at times shows his age in periods of senility and of emotional outburst. He is an extreme authoritarian and nationalist who rules the executive branch of the government with an iron hand and resents any effort on the part of foreigners to influence his government. This attitude originates in his national pride and the sensitivity of a long suppressed nation. In our contacts with most Koreans, we find these traits being a continuous handicap. It has been mentioned, on the other hand, that Rhee does not control the present legislature. Still, the tension between the two branches of the government is not so much based on differences in principles, but caused by personal intrigues and rivalries of ambitious politicians.
The Korean police having learned all the vices of the Japanese police while lacking their virtues, are arbitrary and brutal as well as corrupt. The use of third degree methods and lengthy detentions are a well known concomitant of their investigating methods. The police is also used for political purposes.
Corruption is, however, not limited to the police but extends to other officials of the government, whether high or low ranking. This characteristic has a long history in a country where politics meant advancing one’s own interest. Since the volume of supplies and funds under the control of the government is greater than ever dreamed, the opportunities for private enrichment are correspondingly increased.
Another indisputable fact is that the Korean Government is inefficient. There are a number of reasons for this situation. Perhaps most important is the influence of Japanese policy. Korea became a Japanese colony in 1910 and remained a colony for 35 years. In that period Koreans were systematically excluded from positions of responsibility, either public or private. The few who did achieve a degree of eminence were all stigmatized as Japanese puppets and were ostracized by the Koreans after the liberation in 1945. Following the liberation, the Government fell into the hands of a group of political exiles, one of whom is now President, and many others of whom hold important administrative positions. None of these men had had any experience in the administration of large-scale affairs. They had been political agitators, who succeeded by virtue of events beyond their control. While some of them are men of considerable intellectual stature, they are generally deficient in executive and in administrative ability. There are other elements in the situation, however. The Korean Government has a long history of administrative weakness prior to the period of Japanese domination. It has long been plagued by the pernicious influence of cliques. Under the Lee Dynasty prior to 1895. the Government was a matter of palace intrigue between rival factions, in the ancient oriental tradition.
Fairness, however, requires the recognition that the young Republic, before it was properly established after a long foreign domination, was put to a formidable test of political and economic difficulties culminating in the full-scale armed invasion of the country, which at times saw itself threatened with extinction. War and devastation struck the nation and most of the territory has been a battlefield at one time or another. A large number of Koreans lost their lives; entire communities have been wiped out and others largely destroyed. Transport and communication were disrupted, the central government had to move, and large numbers of refugees blocked the roads. All these and many other problems had to be solved by an unprepared and unexperienced government. The fact remains that despite difficulties and confusion the governmental apparatus did not disintegrate and that the civil administration was quickly re-established as districts were liberated from enemy occupation. UNCURK in the aforementioned report arrives at the somewhat optimistic conclusion that Korea will, when hostilities have ended, with slowly acquired experience in administration, with international assistance, and through the painful process of trial and error continue to develop the institutions of democracy.
However that may be, and whether or not we agree with this evaluation, in the existing international situation our own national interest is irretrievably tied up with the preservation of the tiny and imperfect Republic of Korea. The United States has been her parent, or, to say the least, the midwife at her birth and has since kept her alive with tremendous effort. To abandon her would mean a terrific loss of face in Asia, where face counts more than in other parts of the world. We cannot afford such loss. The Korean Government knows this very well and takes our support and sacrifices for granted, without showing the degree of cooperation desirable for the achievement of the common goal.
