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Government establishment and the Rhee Syngman administration

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Early Government and Democratic Experimentation
 
1. Government Establishment and the Rhee Syngman Administration (1948-1960)
 
(1) Original Constitution
The first Constitution, enacted and promulgated on July 17, 1948, declared South Korea a democratic republic and with that declaration guaranteed a wide range of basic civil rights as well as the separation of powers. Legislative power, accordingly, was exercised by a unicameral National Assembly; administrative or executive power, by a President elected through the confidential votes of National Assembly members; and judicial power, by the courts of law. The Chief Justice of the Supreme Court was to be nominated by the National Assembly and appointed by the President for a term of 10 years. The Constitution also provided for the Constitution Committee, which was charged with reviewing the constitutionality of legislation.[1] In July 1948, the National Assembly elected Rhee Syngman as the inaugural president of the new Republic of Korea. Rhee appointed, with the National Assembly’s ratification, Kim Byeongro as the inaugural Chief Justice of the Supreme Court in August the same year. The original Constitution came to lose its force when the Korean War broke out in 1950, with the powers it provided for reverting back to the presidency. The elections for the President and the Vice President were held on March 15, 1960. Rhee was re-elected but was ultimately forced to resign over an electoral fraud scandal.
 
(2) Judiciary-Administration Relations
 
1) Independence of judges
(i) President returns the Court Organization Act
President Rhee vetoed and returned the Court Organization Act (COA) to the National Assembly, citing the limits it placed on the presidential power to appoint the Chief Justice of the Supreme Court (Article 37) as unconstitutional.[2] Kim Byeongro, the then Chief Justice, however, ruled that the Constitution provided only principles of appointment, and that the details and procedures of appointment should ultimately be decided by statutes. The National Assembly enacted the COA again on September 26, 1949 (OCA, 1995, 249-250). President Rhee’s veto of the original bill for the COA over the appointment of the Chief Justice of the Supreme Court marked the first instance of the friction growing between the judiciary and the administration (the President) since the Korean government’s establishment.
 
(ii) Reappointment of judges and the President’s veto
The Judge Reappointment Act was enacted in 1958, a decade after the original Constitution. The Act, however, failed to define the criteria or timeline by which the President should decide on the reappointment of judges, thus leaving much room for the abuse of presidential authority by his refusing to reappoint judges whose opinions differed from those of the administration. President Rhee, as a matter of fact, refused to reappoint a number of eligible judges for this precise reason.[3]
 
2) Independence of trials: the Court’s ruling on the Progressive Party and protests
The controversy over judicial independence during the Rhee administration period arose most acutely over cases involving alleged violations of the National Security Act and alleged support for North Korea. A paradigmatic case in point was the controversy that erupted over Cho Bongahm, the leader of the Progressive Party.[4] The Seoul District Court found Cho not guilty of charges of espionage and violating the National Security Act (July 2, 1958, 4291-Hyeonggong-524, etc.).[5] The decision, however, provoked over 200 protesters into breaking into the court building, demanding that Cho and his supporters be convicted as North Korean spies. Chief Justice Cho Yongsun of the Supreme Court also exhorted the Seoul District Court “not to insist upon a narrow-minded and subjective prejudice by forgetting its greater duty to help the nation achieve its goals and objectives.” On appeal, the Seoul High Court sentenced Cho Bongahm to death (October 25, 1958, 4291-Hyeonggong-958), and the Supreme Court upheld the decision (October 25, 1958, 4191-Hyeongsang-559; OCA, 1995, 268-272).
 
3) Constitutional review
The Constitution Committee reviewed six cases in total, finding the two discussed below unconstitutional.
 
(i) Farmland Reform Act
The Farmland Reform Act, enacted in March 1950, allowed the government to file lawsuits against individuals to whom it had sold farmland but from whom payment for the land had not been received for any acceptable reason. Only one appeal was allowed on each government-filed case (Article 18.1). The legislation was submitted first to the Supreme Court for constitutional review. The Constitution Committee, in turn, found that restricting appeals to high courts only violated a defendant’s right to trial before the nation’s highest court (September 9, 1962, 4285-Heonwi-1; OCA, 1995, 303). This was the first time the Constitution Committee had found a controversial legislation unconstitutional.
 
(ii) Special Measures Decree on the Punishment of Crimes in National Emergency
Emergency Order No. 1, issued at the outbreak of the Korean War on June 25, 1950, was the Special Measures Decree on the Punishment of Crimes in National Emergency. The Decree proclaimed that a local court or a district could rule on cases of larceny or treachery single-handedly, with no opportunities granted for appeal. The Constitution Committee, however, found that Article 9 of the Decree that removed opportunities for appeal violated the individual’s right to be tried according to due process, and his/her right to be tried before the nation’s highest court, guaranteed by Articles 22 and 76.2 of the Constitution, respectively (September 9, 1952, 4285-Heonwi-2). This decision is now remembered as a heroic attempt made by the nation’s judiciary to protect the right to fair trial even amidst the chaos of a war.
 
 
2. April 19 Revolution and the Jang Myeon Government (1960 – 1961)
 
(1) Constitution of 1960
On June 15, 1960, two months after the April 19 Revolution, the Jang Myeon government enacted and proclaimed a new Constitution of Korea through which the presidential system was replaced with a parliamentary one. The Constitution of 1960 also introduced the Constitutional Court, elections for the chief and associate justices of the Supreme Court, and elections for the heads of local government organizations. In July of the same year, elections for members to the Upper House of the national legislature were organized. The Bicameral Convention then resulted in the election of Yun Boseon as the President of the Second Republic. The Jang government’s audacious attempts at establishing a parliamentary democracy in Korea, however, were thwarted by the military coup d’état of May 16, 1961.
 
(2) Judiciary-Administration Relations
 
1) Independence of judges
The Constitution of 1960 called for the assembly of an electorate qualified to elect justices to the Supreme Court, and delegated the power to officially appoint judges to the Chief Justice of the Supreme Court. The Jang government then promulgated the Act on the Election of the Chief and Associate Justices to the Supreme Court in April 1961, but the planned elections never materialized, as Park Chunghee waged a coup and declared martial law on May 16, 1961, just one day before the court elections were to be held.
 
2) Independence of trials: Decisions on electoral frauds and the fourth constitutional amendment
The amended Constitution of November 13, 1960, contained a new supplementary provision that enabled the government to enact special acts.[6] The Jang government took advantage of this provision to enact retroactive legislation against corruption, including the Act on the Punishment of Parties Involved in Electoral Frauds, the Act on Limiting the Civil Rights of Anti-Democratic Criminals, the Act on the Disposal of Illegally Amassed Wealth, the Act on the Organization of the Special Tribunal and the Special Prosecutor Department, and others. While these new acts met constitutional requirements, their retroactive nature and the restrictions they placed on basic rights, such as franchise and the right to property, made them quite controversial (Jeong, 2006, 151).
 
3) Trials on the constitutionality of legislation
The Constitution of June 1960 called for the creation of the Constitutional Court comprised of nine judges tasked with reviewing and deciding the constitutionality of legislation.[7] The Constitutional Court Act that was enacted on April 17, 1961, however, was never enforced as the military coup broke out shortly afterward. There were thus no cases tried by the Constitutional Court on the constitutionality of legislation.
 

 
[1] Article 81.2 of the Constitution advised that courts first refer to prior Constitution Committee cases contesting the constitutionality of legislation, and render their decisions according to the Committee’s findings. The Constitution Committee was comprised of 11 members in total, including the Vice President as its chair, five Supreme Court justices, and five National Assembly members (Article 81.3).
[2] Article 37 of the bill for the COA, submitted to the National Assembly in January 1949, required that the President appoint Supreme Court justices and decide the duties of the Chief Justice upon nominations from the Judges’ Conference, which was comprised of all Supreme Court justices and the chief judges of high courts.
[3] Of the 52 judges eligible for reappointment in 1958, thirteen (25 percent) were denied reappointment. In 1959, seven among 24 eligible judges were denied reappointment. These judges included the Chief Judge of the Seoul High Court who stayed the case of National Assembly member Seo Minho, and a judge of the Seoul District Court who reduced Cho Bongahm’s sentence to five years in prison and refused to find Cho guilty on a number of charges (OCA, 1995, 272-276).
[4] Cho Bongahm, the then Central Progressive Party Leader, was indicted on charges of conspiracy and rebellion after having been found guilty of collaborating with the North Korean regime between 1956 and 1967 (in the forms of receiving instruction and funds) to spur support for peaceful national reunification, the withdrawal of U.S. troops, and the organization of an anti-America national union. Chief Judge Yu Byeongjin of the Seoul District Court determined that the case involved 22 persons who had allegedly violated the Anti-Espionage and National Security Acts. He sentenced Cho to five years in prison, but acquitted the others, including Yun Giljung.
[5] The Court held the ideological backbone of the Progressive Party as closer to social democracy, asserting that the evidence presented was insufficient to identify it as a purely socialist organization. Moreover, the question of whether advocation of peaceful national reunification violated the Constitution could be determined only on the basis of whether the methods and actions called for to that end were in accord with constitutional or other statutory principles and procedures. The Progressive Party, however, did not proffer a specific action plan for national reunification, according to the Court.
[6] The April 19 Revolution raised the demand for strict punishment of persons involved in electoral frauds. When the court, however, acquitted defendants charged with election fraud in the elections of March 15, 1960, for reasons of statutory limitations and lack of evidence, infuriated students broke into the Lower House of the National Assembly and demanded that the representatives enact a special act addressing electoral fraud.
[7] See Constitutional Court, 1998, 28, for arguments in favor of and opposing the creation of the Constitutional Court.
 

 

Source: Korea Institute of Public Administration. 2008. Korean Public Administration, 1948-2008, Edited by Korea Institute of Public Administration. Pajubookcity: Bobmunsa.

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