국제, 북한, 기사, 칼럼

A Comparison of two Koreas’ Constitutions: Constitutional Integration Homework for the Unification of Korean Peninsula

ChartersOfFreedom_009.jpg
One of the sheets of the Constitution as it arrived at NBS to be sealed in a helium-filled glass container to be permanently preserved. Photo=Wikimedia Commons Image

A comparison of two Koreas’ Constitutions:
Constitutional Integration Homework for the Unification of Korean Peninsula

Kim, Dong Yon

Abstract
The constitution is the fundamental element of Republic which guarantees the human rights of the people and lead its people to the proper democracy. It is carefully designed by the founding fathers of the US. Also, it is the standard of the judiciary that can guide the people and judge the people on the basis of law. Therefore it is important to acknowledge and understand the constitution and its use. Most of the democratic republic adopted the constitution, namely the United States of America and the Republic of Korea (hereinafter South Korea). However, communism countries like China, Russia, and Democratic People’s Republic of Korea (North Korea, hereinafter DPRK) are also known to have their own constitution despite their communism systems.

So it is necessary to compare their constitutions and our constitutions and analyze the differences and find the reasons behind them. Especially the constitution of DPRK is not well known for many that it is necessary to look at their constitutions closely and see how it is formed. By knowing the DPRK’s constitution, we can understand their motivation of their strategies and the intentions of their future plans of provocations, and negotiations. Plus, we can understand better about their transmission of heredity as well.

Above all, in order for the two Koreas to unify in the future, they must understand the constitution of North Korea. The integrated constitution based on liberal democracy for the future of both countries must be constituted and prepared.

 ‘We the People of the US’: Are the people important in DPRK’s constitution?

The Preamble of DPRK’s constitution is the one of the biggest difference of the constitution from other Republics: South Korea and the US. The US preamble started with the “We the people of the United States” and highlighted the Union and its establishment of justice, tranquility, liberty, and welfare of people. In South Korea’s Preamble highlighted the historical independence in 1919 under Japan’s colonial era. It also emphasized the equal opportunity of politics, economy, society, culture for the people, and its assurance of civic rights, and the promotion of the world peace.

However, DPRK’s preamble started with the dear leaders, Kim Il-song, and Kim Jong-il are the principle agent of the socialism state, DPRK. Kim Il-song is the DPRK’s creator and he is the father (progenitor) of the DPRK. The preamble is constructed with about 380 words and it is all about the importance of Kim’s family heritage. Whereas the US preamble is about 50 words of the importance of its people, liberty, and equality. DPRK’s long preamble continued to describe the eternity of Kim Il-song’s establishment of self-reliance ideology of DPRK. It does not only described the achievements of Kim Il-song but also directly depicted the Kim as the genius of art, master of war who has been through 100 battles with 100 victories, a great politician, and the great human. It also boasted Kum Su-san Palace where the dead body of Kim laid and decorated as the symbol of DPRK’s dignity and the everlasting shrine. Based on this preamble of DPRK’s constitution, it only focused on the significance of Kim family and no care for its people. At the end of its description, “DPRK’s Socialism constitution is the legalization of self-governing nation-constructing ideology and the achievement of nation-constructing of the great leaders; Kim Il-song and Kim Jong-il.”  So the DPRK constitution itself is the representation of Kim’s family and it only focused on Kim’s family rather its people.

DPRK divided their articles into issues. Article 1 is Politics, Article 2 is Economy, Article 3 is Culture, Article 4 is Defense, Article 5 is citizen’s fundamental rights and responsibility, Article 6 is National Institutions, Article 7 is about DPRK’s national emblem, flag, anthem, and the capital.

Article 1, Section 1 of DPRK constitution said DPRK is representing the people’s interest and the DPRK is the socialism state. Whereas South Korea’s Article 1, Section1 said South Korea is the Democratic Republic. Rights of South Korea come from the people (citizens) and all rights comes from the people.

Article 1 Section 4 of DRPK shared its sovereignty (rights) with Labor workers, farmers, soldiers, and labor intelligentsia (intellectual people). it means they do not share their rights with other social groups. It is very limited rights for certain group of people. This can create the certain majority of factions in the society. This factionalization of DPRK gets clear as the constitution goes. Section 10 is also similar to 4. It proclaimed that all social members should be revolutionized and labor classified then unify them as one group. So the DPRK is promoting its people to be factionalized. Creation of one gigantic faction means the domination of the country and not allowing any opposition.

The US Democratic Republic does not permit the monopolization of certain faction. If one majority of people in society occupy and represent the majority of the country then it could trigger the factional conflict. Others who are in the minority can resist the norm. A creation of certain faction and those created factions should not stay together to rule over the other factions. It is the weak point of democracy which founding fathers of the US prevent them by dividing the factions into individuals. So the majority of factions can switch its stance from one issue to another. Then there is no permanent majority in the society.

“Some engage in factional conflict because they aim at equality, if they consider that they have less in spite of being equal to those who are aggrandizing themselves; others, because they aim at inequality and preeminence, if they conceive themselves to be unequal but not to take a greater part, but an equal or lesser one.”

Also, the Federalist Papers No.10 Madison illustrated the details of the dilemma of factions under democracy. Then proposed the cure to solve the problem of factions by giving them the equal passions, and interest.

“There are two methods of curing the mischiefs of faction: the one, by removing its cause; the other, by controlling its effects. There are again two methods of removing the cause of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interest.”

Based on this, the US does not classify nor categorized the people into a certain group of class or faction but individuals who can participate and express their will and opinion regard to the issues. Therefore there is no fixed faction, class, and majority.
Article 2’s title is Economy. There are detailed descriptions of their labor work hours and conditions. Section 20, All the production measures are the property of the state and social cooperation union. Section 21, a National property is the property of people. All natural sources, train, air transportation, major factories, companies, ports, and banks only belongs to the state. A state is the central responsibility of the economic developments that the national ownership should be protected and preceded its people.

Article 24, private properties are for the individual user. Private properties are given from the state’s socialism distribution based on the labor and the additional interest from the society. Article 26, DPRK’s Independent people’s economy is the fundamental base for the flourishment of the state. The state promotes the economic construction of people’s self-sufficient socialism and boosts the self-reliance, modernization, science. Thereby state continuously fight and develop the self-sufficient people’s economy with the abundance of material necessities. Later sections (30, 31) stated the labor hours should be limited to 8 hours a day and those who can work should be minimum of age of 16.

However, the Interview of DPRK escapees revealed that they often work more than 8 hours and age under 16 work too. Teenagers after school they have assigned missions from the government to accomplish every day. It is called afterschool field activity. They do all kinds of labor: harvesting and cultivating various plants, carrying tools, rocks, materials at the construction site. The work continues until the sun goes down when people cannot see each other. Most of DPRK have no sufficient electricity to light the area.

DPRK’s constitution’s structure is not similar to the US constitution but South Korea’s constitution somewhat because South Korean constitution also stated the detailed guideline of work. It does not specify the work hours or the age but the conditions of work. South Korea constitution Article 2, Section 32, all people have a right to work. Work condition should follow and guarantee the human dignity based on law. Women and young workers require the special protection and no discrimination of their working condition, payment, and employment.

Unlike DPRK, the US people can have their own private property because of their freedom. “American occupies himself with his private interests as if he were alone in the world, and a moment later, he gives himself over to the public as if he had forgotten them. He sometimes appears animated by the most selfish cupidity and sometimes by the most lively patriotism. The human heart cannot be divided in this manner. Inhabitants of the United States bear witness alternatively to a passion so strong and so similar for their well-being and for their freedom that it is to be believed these passions are united and intermingled at some place in their soul.”

Under the democratic government, the power of check and balance is one of the key features to preserve the Republic system; Executive, Legislative and the Judiciary. These powers do not interfere with one another but check other powers and prevent the override of other power and break the balance of the state.

“The nearer any government approaches to a Republic, the less business there is for a king. It is somewhat difficult to find a proper name for the government of England. Sir William Meredith calls it a Republic; but in its present state it is unworthy of the name, because the corrupt influence of the crown, by having all the places in its disposal, hath so effectually swallowed up the power, and eaten out the virtue of House of Commons(the republican part in the constitution) that the government of England is nearly as monarchical as that of France or Spain.”

DPRK called themselves as the Republic as stated in their national name and glorify their fairness but in fact, based on their constitution does not divide the powers between branches rather allow the executive power to rule over all other branches. Article 6 National Institutions enumerated the power of the branches. When you look at them, its set up is similar to those of parliamentary cabinet system. It begins with the Supreme People’s Assembly, many of critical positions within the assembly can be appointed without elections. According to Section 91, It said: “either selected by the election or appointment.”  So such positions are filled up by the appointment of Kim Jong-un. It is no different from the Kingship in the ancient government of England which described above.

The impact of religion in DPRK’s constitution

An important part of the US constitution is religion. With the guarantee of freedom of religion and historical background, many people came to the United States to avoid religious repression in England. That is why religion plays a big role in American history and the constitution. This is why the United States did not make a particular religion as the national religion. In the United States, states can specify certain religions by law, but not the entire United States.

Religion is very important in the country and society, and it controls the belief of the individual and even acts as an auxiliary means of law. The role of religion has a great influence on the establishment and operation of the nation. The law plays a role in preventing human illegal activities, but it cannot regulate human behavior. For example, you cannot crack down on details such as Do not do bad things. But the religion controls this part through religious 10 commandments and leads the public in a good direction.
Alexis Tocqueville highlighted the religion in the US, “There is a certain European population whose disbelief is equaled only by their brutishness and ignorance, whereas in America one sees one of the freest and most enlightened peoples in the world eagerly fulfill all the external duties of religion.”

Section 68 of DPRK’s constitution said the people can have a freedom of religion. It even allows the people to build a religious building and religious practice. However, unlike the contents of the constitution, those who believe in other religions in DPRK than others are in severe condition. In particular, Christian believers are tortured to the point where they cannot be described in words. According to the testimony of a person who was arrested as a Christian in DPRK’s prison camp and escaped to South Korea, Christian believers are treated less than animals. They work in a furnace that carries metal melted fire without the proper clothing almost naked body. Since their skins are exposed to the high temp fire often fire debris splashed on their body. The bodies of these Christian believers are covered in black, because of a constant splash of hot debris on skins caused the blood clots to stay. They work about 16 ~ 18 hours a day and eat only one meal a day. DPRK punish them because they are not allowed to worship only the leader, Kim family.

Word use; freedom, election, labor in constitutions by statistics.

The Interesting fact about the constitutions of three countries would be the word count for the certain words; freedom, liberty, labor, election, and human rights. These words are important for the people of each nation. They represent the meaning of the people and for the people.

However, the frequency of certain word used in the constitution and the life in each country as a citizen can and cannot match with the written words in the constitution. It is also questionable that the authority may or may not differentiate the value of the word in their constitution, but it is important to count them and compare them because people can check the reality of each nation and the constitutional statements. Also one may be curious about how often DPRK used the word, freedom in their constitution. In general, people may assume that DPRK constitution uses the word like freedom less than South Korea or the US constitutions but in fact, it could be right or wrong.

In DPRK’s constitution, the word “freedom(자유)” written 10 times, “Human Rights(인권)” written 1 time, “election(선거)” written 41 times, and “labor(로동)” 39 times. In South Korea’ constitution, a word “freedom(자유)” written 22 times, “Human Rights(인권)” written 1 time, “election” written 33 times, “labor(근로)” 13 times. In South Korea constitution did not use the same exact word for “labor” in Korean because South Korea wanted to differentiate the nuance of Socialism type of “labor” so it used Korean word which means “work” rather “labor” but recently South Korea administration is under the process of amending this word from “work” to “labor.” Therefore it is controversial among the people that South Korea constitution is becoming DPRK like.

The US constitution contains the word Liberty once, Freedom has written 0 times but word Free 1 time. The US constitution has no word Human Rights but the word, Right 1 time. The word “Labour” written 3 times. Election-related words; election, elector(s), elected written 24 times.

Based on this, DPRK used the word “freedom” less than South Korea in their constitution but used more than the US. South Korea used the word “freedom” about twice more than the DPRK. On the other hand, it is surprising to see the word, election more in the DPRK constitution than both South Korea and the US. DPRK used the word election about twice more than the US. The word labour is used much more often in DPRK constitution than the other two constitutions. DPRK used it for 39 times whereas South Korea used 13 times, the US only used 3 times. DPRK used the word Labour three times more than South Korea, about 13 times more than the US.

Constitutional readiness for the unification of Korean Peninsula

As a result of counting the number of specific words, it was mentioned more in the DPRK constitution than the US and South Korea. In particular, the word labor is overwhelmingly significant in DPRK constitution, the socialist constitution. In other words, DPRK emphasizes the importance of labor than anything. Ironically, however, the word “election” came out more in DPRK’s constitution. The fact that the people’s right to vote, suffrage which is most important in the democracy is mentioned more in North Korea’s constitution is different from the actual fact. According to DPRK escapees to South Korea, they come to South Korea and experience the voting for the first time in their lives. The concept of the election itself is unfamiliar to them. It is not easy to understand that the word “election” that does not reflect the real lives of residents of DPRK mentioned more in their constitution than the US and South Korean constitutions.
If we look only at the composition of the DPRK constitution, DPRK’s constitution has similarities with South Korea’s constitution. For example, the division of each section and detailed governmental matters are the same. Therefore, there is a possibility that DPRK has referred to the constitution of South Korea to some extent. In particular, based on the notion of South Korea’s democratic constitution, DPRK would have tried to show that its constitution is not a dictatorship but a rational constitution for the people.
However, the North Korean constitution is clearly mentioned at the beginning of the Socialism Constitution. Therefore, this is a Socialism Constitution and emphasized the importance of all Kim Il-sung and Kim Jong-il regime. In the end, the contents of the constitution seem to be for the people, but the reality is not. This has been confirmed through the testimony of many DPRK escapees, as mentioned several times above. In particular, it is absolutely not to be overlooked that labour abused young people and violating Christian believers with inhumane torture.

In addition, the reason that the North Korean constitution does not fundamentally democratic values is that the constitution refers to a detailed social group. Workers, soldiers, and so on, and they have to follow certain laws and the rights guaranteed to only for them. This is incompatible with the value of democracy against the formation of faction. The true value of democracy is that the people should exist as individuals and not cultivate the power of vested interests. In the long run, it is inequitable for certain factions to benefit, and democratic society cannot be achieved.

It is after the reunification of the Korean Peninsula that the United States, as well as the Republic of Korea, should prepare. Especially how to govern different groups that have been separated for a long time by the different constitutions. In order to realize the right rule of law for both, it is not necessarily a socialist constitution, but a constitution that is appropriate for a democratic republic. Through this paper, we confirmed the constitutional gap between the two countries, and I am asking the Korean and the US governments for their continued efforts to fill this gap. It is also a homework for Koreans.

What is not well known in the United States at present is the fact that there is a detailed plan for North Korea to rule the peninsula after the reunification. In North Korea, this is plausibly wrapped in the idea of “peaceful unification.” Using the expression “peace,” even the people of South Korea see this as a good way of unification. However, the essence is the pursuit of North Korean reunification, Communism unification, and the content is to promote the federal communism government which allows both sides with the different leaders for each provincial governor. Northside will continue to rule by the Kim family. Ultimately sustain of the dictator in the North and let them grow under unification then Kim will eventually become the federal leader for both side.

Basically Communism way of unification. It also includes the total withdraw of USFK in the peninsula.  Therefore, the Korean and US governments should prepare for the enactment of the constitution, which will become the framework of liberal democracy settlement for the unified Korean peninsula. The present constitution of South Korea regards DPRK ‘s geographical territory as South Korea’ s territory, so finding a way to expand and apply this constitution would be a good alternative.

Bibliography

Constitution of Republic of Korea

Constitution of the United States of America

Constitution of Democratic People’s Republic of Korea

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Kim, Chan. “충격적인 북한 기독교인들의 박해 실상 증언.” Christian focus, February 02, 2014. http://www.christianfocus.kr/news/news_print.html?section=1&category=6&no=2185.

Kim, Chun Ae. “처음으로 해 본 남한 대통령 선거.” RFA, December 20, 2007. https://www.rfa.org/korean/weekly_program/kim_chon_ae/presidential_election-20071220.html.

Kim, Dong Yon Kim. “개헌안에 대한 소크라테스의 경고…북한의 헌법과 비교해보니.” Monthly Chosun, March 25, 2018. http://monthly.chosun.com/client/mdaily/daily_view.asp?Idx=3717&Newsnumb=2018033717&stype=rep.

Kim, Dong Yon. “통일되면 남북의 학생은 1600만명, 이들에게 무엇을 가르칠 것인가.” Chosun Pub, December 15, 2014. http://pub.chosun.com/client/news/viw.asp?cate=C03&mcate=m1007&nNewsNumb=20141216196&nidx=16408.

Kurland, Philip and Lerner, Ralph. The Founders’ Constitution. Indianapolis: Liberty Fund, 1987.National Law Information Center. “Constitution of the Republic of Korea.” http://www.law.go.kr/LSW/eng/engLsSc.do?menuId=1&query=Constitution&x=0&y=0#liBgcolor3.

Oh, Chang Wook. “’고려연방제’ 되면 김정은이 국군통수권자 된다?.” Blue Today, February 14, 2013. http://www.bluetoday.net/news/articleView.html?idxno=3325
Tocqueville, Alexis. Democracy in America. Chicago and London: The University of Chicago Press, 2002.

 


[4차 산업과 그 이후의 미래를 알고픈 사람들을 위한 추천도서]
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Unintended Future: for the mankind who want to know the unknown future
예기치 못한 미래: 미지 (未知) 의 미래를 알고자 하는 인류를 위해

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