Constitutional History of Korea

Constitutionalism in South Korea is the result of decades-long process and determined efforts. Today as well, it is high on the country’s agenda, and the current Constitution of 1987 is in the line of fire due to its defective points that need to be revised to achieve a more modern and democratic fundamental document. That is why, in order to offer a full picture of ongoing debates on constitutional amendment in the Republic of Korea, one needs first to dig into the constitutional history of the country.

A constitution is the supreme legal norm of a country that defines fundamental principles and laws upon which the state is based. It determines the powers and duties of the government and guarantees certain rights to the people in that country. A constitution embraces a nation’s history, implies its future goals, and shows its view of the world. In other words, a constitution reflects its nation’s soul. That is why in order to better understand a nation, it is crucial to examine its constitution carefully.

Constitutions have come to characterize modern democracies in the last centuries. Various governments all over the world have made laborious journeys towards democracy by adapting modern constitutionalism, based on the rule of law and the principle of separation of powers, in place of previous law systems based on various concepts such as religion or culture. This wave of modern constitutionalism swept across East Asia as well to upstage reigning political systems of laws heavily influenced by Confucianism, which shaped the daily life, ethics, social relations, and public administration for many centuries, and laid the foundation for most of the legal systems. In East Asia region, the concept of modern constitutionalism first spread to Japan in 1889 with the Meiji Constitution, and then to Korea—the Kingdom of Joseon back then—with the famous Gabo Reforms of 1894[1], and later to China in 1898 with the Hundred Days Reform[2], which culminated in 1912 with the Provisional Constitution, the first modern constitution of the newly established Republic of China after the 1911 Chinese Revolution that toppled the 2000-year-old imperial tradition.[3] In the Korean case, the journey of legal reforms arguably started around the sixteenth century, but modern changes can be better traced back to 1894 after the Gabo Reforms, the first comprehensive effort at modernizing the Korean government and society.[4] Ideally, these reforms set the stage for other constitutional reforms and amendments that were to be put in place in the country over the next several decades. Subsequently, the Constitution of the Great Han Empire came in 1899 as a fruit of the steps taken towards establishing a modern nation state. In 1919, the Provisional Government of the Republic of Korea which was a provisional government in exile opposing the Japanese annexation of Korea in 1910 proclaimed its Constitution that provided the inspiration for the first constitution of the Republic of Korea, the Constitution of 1948, which was amended nine times until today. The ninth and last amendment came in 1987 under the title of the Constitution of 1987, which is the current constitution of the country.

As mentioned above, in common with most states in the world, the Republic of Korea has written constitutions that are often the products of some dramatic political change. The process by which a country adopts a constitution is closely tied to the historical and political context driving this fundamental change. Moreover, the legitimacy and longevity of a constitution are often dependent on the process by which it is initially adopted. For the very reason, by examining the process of South Korean constitutional development throughout history, this series of articles offers the opportunity to thoroughly perceive South Korean political tradition, and provides the chance to better interpret our modern day, and make some inferences about its futures by taking its current debates on constitutional revisions appertaining to presidency into consideration.

 

[1] The Gabo Reform is a series of sweeping reforms in Joseon Korea between 1894 and 1896 during the reign of King Gojong under the Japanese sponsorship with the aim of founding a modern Western-style state in accordance with the West and Japan. The name “Gabo” comes from the name of the year 1894 in the sexagenary cycle, the traditional Chinese calendrical system Ganzhi, which is used since the second millennium BC for reckoning time in China, as well as Chinese-influenced East Asian nations such as Korea and Japan.

[2] In the aftermath of Chinese defeat in the Sino-Japanese War (1894-1895), the Hundred Days Reform (June 11 – September 21 1898) emerged as a reform movement in late Qing dynasty China as an imperial attempt to modernize the state and social system. Although these reforms were shortlived and could not thoroughly implemented, the idea of a constitutional reform embracing the foundation of a parliament and the establishment of a constitution was firstly found voice.

[3] Bozkurt, Batı Hukukunun Türkiye’de Benimsenmesi, 26-27.

Gao et al., The Road to the Rule of Law in Modern China, 20.

Kim, “Law and Custom under the Chosŏn Dynasty,” 1068.

[4] Kim, “Law and Custom under the Chosŏn Dynasty,” 1074.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s