The North Korean Constitution Patricia Goedde

Beyond Sham: The North Korean Constitution Patricia Goedde

Asian Perspective, Volume 44, Number 1, Winter 2020, pp. 1-29 (Article)

Published by Johns Hopkins University Press DOI: https://doi.org/10.1353/apr.2020.0002

For additional information about this article https://muse.jhu.edu/article/748245

[ This content has been declared free to read by the pubisher during the COVID-19 pandemic. ] Beyond Sham: The North Korean Constitution

Patricia Goedde

The Constitution of the Democratic People’s Republic of Ko- rea is often dismissed as a valid legal instrument within the larger framework of the North Korean legal system. This is an unsurprising outcome given the portrayal of North Ko- rea as a totalitarian dictatorship, documented human rights abuses, and the lack of access to the country’s lawmaking processes. It is also a foreseeable result if comparisons are made to liberal democratic constitutions where rights guarantees and judicial review are defining elements. However, the North Korean Constitution deserves more nuanced scru- tiny in light of evolving research on socialist and authoritarian constitutionalism in Asia. This article argues that the DPRK Constitution should be included more substantively within the analytical frameworks of Asian, socialist, and authoritarian constitutionalism by virtue of how it functions to nation-build, legitimate institutional leadership, signal ideological shifts, regulate society on collectivist, duty-based principles, and guide economic reforms for development and modernization.

Keywords: DPRK, North Korea, constitution, Asian, socialist, authoritarian, leadership, ideology, rights, economic development.

Giving serious thought to the Constitution of the Democratic People’s Republic of Korea (DPRK or North Korea) may seem a counterintuitive exercise because popular media would have the international audience believe that law simply does not matter in North Korea: that a totalitarian leader rules by decrees and sits above the law, while citizens cannot find protection under the law. The assumed lack of information about the historiography of North Korea consequently leads to analyses that struggle to comprehend its constitution beyond reductive nomencla- tures (e.g., cultist, sham, isolationist, dead letter). For example, scholars of East Asian constitutionalism have excluded North Korea from the

Asian Perspective 44 (2020), 1–29 © 2020 Institute for Far Eastern Studies, Kyungnam University 2 Beyond Sham: The North Korean Constitution family of socialist states and relegated it into a category unto itself of “constitutional cultism” (Chang et al. 2014), while others categorize its constitution as a “sham.” Tom Ginsburg argues that Asian constitutionalism is not sham constitutionalism “save perhaps North Korea” (Gins- burg 2014, 34). David S. Law and Mila Versteeg include North Korea in their extensive study of “sham constitutions,” though they ultimately find that North Korea has more of a weak constitution than a pure sham constitution (Law and Versteeg 2013, 901–902). If accustomed to Western democratic standards of constitutionalism, one is rightly skeptical of the importance and applicability of a socialist constitution, especially if the normative baseline is that a constitution exists primarily as a bill of rights as protective insurance against an in- trusive state. On this account, the DPRK Constitution would certainly fail and qualify as a sham. However, North Korea is not a Western liberal democratic state. It is an Asian socialist-origin state. Firmly ensconced in the family of Asian socialist countries (China, Vietnam, Laos, and formerly Mongolia and Cambodia), North Korea merits a discussion of its constitution within an appropriate historical and comparative context. Given that comparative constitutional scholars have accounted for the origins, typologies, and variances of the world’s many constitutions and their purposes—such as Asian constitutionalism (Chang et al. 2014; Chen 2014), socialist constitutionalism (He 2017; Fu et al. 2018), and authoritarian constitutionalism (Ginsburg and Simpser 2014; Tushnet 2015)—surely North Korea deserves a more sober inquiry, as it appears to fit within these overlapping contexts and may not be the exceptional outlier as typically portrayed. For example, adopting the typologies of Asian constitutionalism by Albert Chen (i.e., Leninist, democratic, hybrid), Ginsburg argues that a Leninist tradition is the most distinctive and persistently dominant among Asian countries and includes North Korea in the same collective as China, Vietnam, and Laos (Ginsburg 2014). Leninist principles require a strong state via vanguardism and democratic centralism to ensure a “dictatorship of the proletariat” (Part- lett and Ip 2016, 470–471). Vanguardism presupposes that the state and the people have fundamentally aligned interests, thus allowing the communist party to prioritize public order over individual rights (Fu and Buhi 2018). Democratic centralism is unity in government organiza- tion and administration, essentially the opposite of a system of checks and balances, resulting in legal institutions that implement party-state policies—what may be understood as socialist legality (Partlett and Ip 2016). North Korea exhibits both these principles in its constitution and certainly qualifies. Patricia Goedde 3

Asian socialist countries adopted constitutions based upon the Soviet model and its precepts, such as Mongolia in 1924, Vietnam in 1945, North Korea in 1948, and the People’s Republic of China in 1949 (Fukushima 1975). This heritage of socialist constitutionalism in Asia speaks to the purposes of state building, creating political legitimacy, outlining institutional governance, modernizing, and essentially formulating state power for national order, much in line with the origin of Asian constitutionalism generally (Chang et al. 2014). As already well documented by Wen-Chen Chang and associates, divergences in state building arose in relation to decolonization and accompanying revolutions either communist or democratic (Chang et al. 2014). Despite the enduring legacy of socialist constitutionalism in Asia, the normative markers of constitutionalism depend on the liberal democratic model in contemporary constitutional discourse. Examples of Japan, South Korea, Taiwan, Indonesia, and the Philippines are upheld as eventual success stories of democratic constitutionalism, though these were not necessarily straightforward transitions as occupational, military, and civilian actors often contested administrative power either in transition or as different parties were elected (Yeh and Chang 2011; Chang et al. 2014). The DPRK Constitution shares similar traits with other Asian, socialist, and authoritarian states, thus calling into question the definition of what a sham constitution is. The shared traits of state building, ruler legitimacy, societal order, modernizing, absent or underdeveloped judicial review, representing the collective people’s interests, postwar security, and socialist aspirations are at odds with the liberal version that affirms limitation on state power, checks and balances, judicial review (enforcement for constitutional compliance), and rights guarantees (protected by judicial review). However, judicial review is not necessarily a definitional component of Asian socialist constitutions (Dowdle 2009; Yeh and Chang 2011; Dixon and Ginsburg 2014). In this vein, Dowdle and Wilkinson (2015) advocate reflexivity in thinking about constitutionalism beyond a certain historical axis originating with U.S. constitutionalism that privileges constraints on state power rather than the formulation of state power itself. North Korean constitutionalism must be studied anew. The cate- gories used to analyze the DPRK Constitution to refer to it as sham or weak are normative assignments in relation to what liberal democratic constitutions are. Thus enters the notion of sham constitutions hinging on constitutional compliance, meaning whether the constitution delivers what is promised, and consequently constitutions worldwide appear as 4 Beyond Sham: The North Korean Constitution mockeries. Constitutions are thus deemed a sham if they do not mea- sure up to the standards of limited government authority and guaranteed rights. By default the analysis would gravitate toward the portion on rights. But this would mean that the discourse is more about sham rights protection than about sham constitutionalism. Law and Versteeg (2014) delineate four types of constitutions in authoritarian regimes (strong, sham, modest, and weak) and three strains of authoritarianism (monarchic, military, and civilian). They conclude that the DPRK Constitution is more “weak” than “pure sham” and at least candid in what it promises, as Ginsburg echoes (Ginsburg 2014, 37; Law and Versteeg 2014, 170, 187). (In North Korea, rule of law is never promised, while loyalty to the state and the leader is expected.) This is an important observation as it contradicts the original assumption of North Korea having a pure sham constitution to begin with. What is missing in this analysis is how North Korea might exist as intertwin- ing strains of monarchic, military, and civilian elements (including party based), just as Law and Versteeg point out that “monarchical and military regimes are more likely than civilian regimes to adopt weak constitutions that promise relatively few rights” (2014, 187). It would be worth probing these layers of authoritarianism and where party-based leadership would fit into this as well. However, North Korea does not place easily within definitions of authoritarian constitutionalism or party-based constitutionalism either. For example, Mark Tushnet’s definitional requirements of authoritarian constitutionalism are mainly pre- mised on the Singaporean government, including, for example, control by a dominant party with no legal mechanism to allow challenges against policy decisions, free and fair elections to a degree, no arbitrary arrest of political opponents, open critique of policies, sensitivity to public opin- ion, co-optation of talent, and weak-form constitutional review (2015). In comparison, North Korea would qualify not as authoritarian constitutionalism, but simply as authoritarianism. Bui Ngoc Son encourages the consideration of additional conceptual models for socialist party-based systems such as in China, Vietnam, Laos, and North Korea (Bui forthcoming). Party-state constitutionalism centers on “the separation of popular sovereign power” between the communist party and the state’s administrative authority, essentially both sides’ powers being institutionalized and bound by the constitution (Bui, citing Bakker 2012). However, Bui explains that scholars contest this characterization by pointing to instances of fusion between the party and state, whether in leadership or revenue. In contrast, state-party constitutionism, which Bui proposes as more conceptually useful, is Patricia Goedde 5 a positivist approach where some constitutional provisions are strictly adhered to but without the same respect for constitutionalist norms of liberal origin. Vanguardism, where the state claims to represent the collective interests of the people, is evident in socialist constitutions. The communist party is thus rooted in the state, with the role of the party and its leadership being constitutionalized among socialist states. But even within this conceptual ambit, Bui calls North Korea’s system “constitutional isolationism” with unexplored reference to local military ideology. The study of North Korea pushes the idea of state-party constitutionism further by introducing the dynamics of family succession. North Korea is not easily definable within the existing constitutional discourse, but the existing literature provides some workable points of reference to present a new form of hybrid constitutionalism. This includes some overlap with state-party constitutionism and the formulation that authoritarian constitutions function as an operational man- ual, billboard, blueprint, and window dressing (Ginsburg and Simpser 2014). While North Korea would fall conveniently (as most would) into the conceptual framework of “constitutional instrumentalism” (Bui, citing Ginsburg and Simpser 2014), its intertwined monarchic, military, and party-based legacies are not sufficiently addressed in constitutional scholarship to date. This discussion includes recognizing not just the socialist commonalities of the DPRK Constitution in its authoritarianism and party-based origins, but also the uniqueness derived from its Korean monarchic tradition and military-based prerogatives based on war and national division. Derived from the Soviet constitution and like its Asian socialist counterparts, the DPRK Constitution serves similar purposes of instrumentalism, evidencing a unitary state structure with an embed- ded communist party (“constitutionalized party”), a delineation of its economic system and political aspirations, but with the lack of judicial review (Nicholson and Ha forthcoming, citing Osakwe 1977). Further, similarly, the DPRK Constitution expresses a vanguardism wherein the leadership claims to represent the interests of the working class, but the latter’s rights are conditioned upon their duty to defend the state. The DPRK Constitution serves further functional purposes: to proclaim national sovereignty, differentiate institutional roles, and legitimize inherited state leadership. Amendments are declaratory efforts at further nation-building priorities, referring to national action plans and consolidating leadership. As such, the DPRK Constitution is a dynamic, pre- scriptive document that outlines the institutional apparatus of the state and delineates the current policy objectives of the party—much in line 6 Beyond Sham: The North Korean Constitution with Bui’s constitutionism. Therefore, the constitution must be studied as a changeable national charter that describes the state’s political priorities, structural changes that consolidate leadership, citizens’ rights in relation to duties, and markers in economic development. Only in doing so can one fathom the distinctness of the DPRK Constitution beyond its text. This article analyzes how the DPRK Constitution functions to describe and justify the institutional leadership and national priorities of the state. First, it provides a history of the DPRK Constitution to help understand its socialist origin and indigenization process within a comparative constitutional context. The subsequent sections themat- ically analyze major revisions over the years: (1) transformations in institutional leadership and the state structure, (2) various ideologies introduced in the constitution, (3) the delineation of citizens’ rights and duties, and (4) the unfolding priorities of economic development. This article thus provides a “longitudinal analysis of constitutional sequenc- es” (Ginsburg and Simpser 2014, 15) in North Korea, illustrating that the DPRK Constitution can provide a rich contextualized narrative of its history, development, laws, and functioning priorities as a state.

North Korean Constitutional History

Japanese colonialism in Korea came to an end on August 15, 1945, when the Japanese government surrendered to Allied Forces under the Potsdam Declaration ending World War II. Soviet forces occupied the area north and U.S. forces the area south of the thirty-eighth north parallel, which was meant to be a temporary designation as the respective armies cleared the country of Japanese presence. In the north, with So- viet backing, Kim Il Sung became general secretary of the Workers’ Party of Korea in October 1945, and also chair of the Provisional Peo- ple’s Committee of North Korea in February 1946. One year later, the People’s Committee inaugurated the North Korean People’s Assembly, which approved the drafting of a constitution on November 18, 1947 (Scalapino and Lee 1972). Within three months, the Drafting Commit- tee, after Soviet consultation, submitted a draft constitution to the Peo- ple’s Assembly. To involve and inform the populace about the draft constitution, one million copies were distributed and made the subject of party discussions for two months (Fukushima 1975). This reportedly resulted in over 58,000 letters of support and 220 proposals for revision (Fukushi- Patricia Goedde 7 ma 1975). The act of publicly sharing the draft constitution served to legitimize the new government by purportedly democratizing the constitution-making process, which was important in competing for legitimacy with the U.S.-backed government in the south (Scalapino and Lee 1972). From April 1948, a Special Session of the People’s Assem- bly summarized public discussion, deliberated each article, and adopted the original draft (thus not incorporating any public suggestions) on the condition that the future legislative body of Korea shall approve it (Scalapino and Lee 1972; Fukushima 1975). That summer, the constitution was enforced in the northern half prior to August elections and the convening of the first Supreme People’s Assembly on September 2, 1948 (Fukushima 1975). A Constitutional Committee was created, leading to the adoption of the draft constitution as North Korea’s first constitution on September 8, 1948, and the official legal founding of the DPRK the day after (Scalapino and Lee 1972). North Korea is among ten European and Asian socialist states to have been founded in the 1940s, all of which modeled their constitutions after the 1936 Soviet Constitution under Joseph Stalin (Fukushima 1975) to some extent.1 This was not blind duplication, however, as Sovi- et advisors worked with their North Korean counterparts to incorporate the transitional needs of a new state, such as confiscation of property owned by the Japanese and their Korean collaborators, protection of private ownership for necessary business purposes, and taxation (Yoon 2004). Furthermore, Kim Il Sung proclaimed that “the implementation of the Constitution marked the second step in the struggle for unifica- tion” (after the Consultative Conference of the Representatives of the All-Korean Political Parties and Social Organizations) (Scalapino and Lee 1972, 790–791), implying the significance of its role toward a unified statehood. The DPRK Constitution has since been amended in 1972, 1992, and 1998 (with five minor revisions between 1954 and 1962) (for details of the minor amendments, see Fukushima 1975). It underwent further major revisions in 2009, 2012, 2013, 2016, and most recently in 2019, mostly to signify structural power shifts. The current constitution con- sists of a preamble and seven chapters (172 articles): Politics; Economy; Culture; National Defense; Fundamental Rights and Duties of Citizens; State Organs; and Emblem, Flag, Anthem and Capital. To understand the most substantial changes, this article analyzes the principal revisions under the following themes: leadership and state institutions, ideology, citizens’ rights and duties, and economic development. 8 Beyond Sham: The North Korean Constitution

Leadership and State Institutions

Not only does the constitution explain the major institutional organs of the state, but its amendments evidence how the state’s leaders move into key positions to consolidate and advance their respective institutional legitimacy. The 1948 constitution had set forth that the Supreme People’s Assembly and its Presidium were the highest organs of state power, followed by the central executive authorities of the Cabinet and Ministries, and then local organs, the courts, and procurator’s office.2 While the 1948 constitution had been drafted under the assumption of a unified Korea, this was no longer the reality on the divided peninsula. In 1972, Kim Il Sung revised the constitution to consolidate de jure power for himself. Under the newly titled “Socialist Constitution,” he created the Office of the DPRK and the Central People’s Committee as the two respective highest state institutions.3 He made himself president with unlimited four-year terms and the powers to ratify and abrogate treaties, give pardons, and receive heads of states and the sweeping authority to issue his own orders.4 He also acted concurrently as the chair of the Worker’s Party of Korea and the commander-in-chief. As Kim Il Sung’s health began to wane, his son Kim Jong Il began to make strategic moves to assume power. The constitution was amended in 1992 to elevate the National Defense Commission (NDC) (formerly under the Central People’s Committee) as the second highest state organ. Since Kim Jong Il was chairman of the NDC, the de facto highest state organ in the DPRK as it prevailed over the Supreme Peo- ple’s Assembly (SPA), as well as general secretary of the Workers’ Party of Korea, his rise to leadership was unmistakable. After Kim Il Sung’s death in 1994 and under the 1998 constitution, Kim Jong Il abolished the Presidency and the Central People’s Committee, reverting their respective powers to the SPA Presidium and the Cabinet (Yoon 2004). His reelection as NDC chairman this time meant in no uncertain terms that he was supreme leader of the DPRK, which was consistent with his role in implementing a military-first principle for North Korea (Yoon 2004) (discussed in the next section). Five years after Kim Jong Il’s death in 2011, his son Kim Jong Un replaced the NDC with the State Affairs Commission (SAC) by constitutional amendment. The duties and authority are largely similar to that of the chair of the NDC, but the renaming of the NDC as the State Af- fairs Commission signifies the merging of military and national affairs as the one and the same. According to the 2016 constitution, the chair of the State Affairs Commission is also “the supreme leader” of the DPRK Patricia Goedde 9 as well as the supreme commander of the North Korean armed forces (updated with the official title of commander-in-chief by 2019 amendment).5 As such, he has the authority to

1. guide the overall affairs of the state 2. directly guide the work of the State Affairs Commission 3. appoint or dismiss key state cadres 4. ratify or abrogate major treaties 5. grant special pardons 6. declare a state of emergency and state of war 7. organize and direct the National Defense Committee in wartime [added in 2016]6

In the 2019 amendments, two additional authorities were added: (1) to “make public the laws and ordinances of the Supreme People’s As- sembly and the major decrees and decisions of the State Affairs Com- mission,” and (2) to “appoint or recall the diplomatic representatives resident in other countries” (effectively assuming the previous power of the SPA Presidium).7 Importantly, the chair has the authority to issue orders.8 The State Affairs Commission functions as the “supreme policy-oriented leadership body of State power” and is responsible for dis- cussing and implementing state policies, including the chair’s orders.9 Most recently at the First Session of the 14th SPA of the DPRK on April 10, 2019, Kim Jong Il was not only formally elected chair of the State Affairs Commission but also proposed as “the supreme representative of all the Korean people and supreme leader of the country” (Choe 2019, 6–7). Reflected in the most recent 2019 constitutional amendment, this new conception of being the representative of all Koreans and not just North Koreans may be considered portentous signaling (Frank 2019). The constitution places the current DPRK political structure in the following order: the Supreme People’s Assembly (SPA), the chairman of the State Affairs Commission of the DPRK, the State Affairs Com- mission (formerly the National Defense Commission), the SPA Presid- ium (Standing Committee), the Cabinet, Local People’s Assembly, Lo- cal People’s Committee, and the Public Procurators’ Office and Court. While the constitution states that both the State Affairs Commission and its chair are accountable to the SPA,10 this order does not match the actual hierarchy of authority as it is understood that the supreme leader wields the highest power. The role of the Supreme People’s Assembly is more symbolic in relation to the constitution. In reality, the SPA Pre- sidium is more powerful than the SPA as it is the higher institution of 10 Beyond Sham: The North Korean Constitution state power when the SPA is in recess. Historically, party officials of the SPA Presidium have held higher ranks than the SPA chairmen (Scalapi- no and Lee 1972), and a reading of the constitution shows that the SPA Presidium’s prerogatives exceed those of the SPA.11 For example, while the SPA can amend or supplement the constitution with more than two- thirds of the SPA representatives,12 the SPA Presidium retains explicit power to interpret the constitution, laws, and regulations.13 The SPA can adopt laws, ordinances, and decisions by more than half of the attending representatives with a show of hands, but again, it is the SPA Presidium that actually deliberates and adopts new bills, regulations, amendments, and supplements when the SPA is (frequently) not in session, with these new legal propositions being approved at the next SPA session for adoption and enforcement.14 The SPA Presidium also has the explicit power to supervise institutional observance of the laws and take according measures and to rescind any decisions, directives, and regulations of state organs that contradict not only the constitution but those of the SPA, SAC chair Kim Jong Un, SAC, and itself.15 As the Cabinet also has lawmaking authority in relation to its duties related to administration and the national economy, it can “adopt, amend or supplement the regulations on State administration on the basis of the Constitution and the laws” as well as rescind contravening decisions and directives of administrative and economic bodies.16 Similarly, throughout the country, the Local People’s Assembly can issue decisions to implement local plans for the development of the national economy, while the local people’s committees implement all the orders, laws, ordinances, decrees, decisions, and directives, and also have the ability to issue decisions and directives at the local level.17 State institutions are thus explicitly required to observe constitutional provisions. Each successive supreme leader has wielded his rule constitutionally. This may seem a radical proposition, but the constitutional amendments made during each leader’s rule explicitly shows who or which state organ has the power to issue executive orders (myeongnyeong, 명령) as well as which ones have the authority to implement them or to abolish contradicting laws, ordinances, decisions, decrees, directives, regulations, and ordinances from other state institutions and administrative bodies.18 In 1948, the SPA and the Cabinet were both authorized to issue decisions (gyeoljeong, 결정) and implementing directives (jishi, 지시). Kim Il Sung changed this constitutionally in 1955 to have the Cabinet issue orders instead of directives, presumably to elevate the authority of his commands as premier of the Cabinet (Weiser 2018). The 1972 amendment then gave the new President’s Office (Kim Il Sung) Patricia Goedde 11 authority to issue presidential orders (juseok myeongnyeong, 주석명 령). Kim Jong Il changed this in the 1992 amendment to have the NDC chair (himself) to issue orders and decisions, and this authority followed Kim Jong Un in 2012 as the SAC chair. The latest 2019 constitutional amendments shift the hierarchy of laws so that the orders of the SAC chair—not the pronouncements of the SPA or the SPA Presidium—follow right after the constitution.19 As now laid out in the constitution, the hierarchy of laws are (1) the constitution, (2) orders of the SAC chair, (3) SPA laws and ordinances (beobnyeong, 법령)20 and decisions, (4) decrees (jeongnyeong, 정령), decisions, and directives of the State Affairs Commission, and (5) decrees, decisions, and directives of the SPA Presidium.21 The 2019 amendments also now give the State Affairs Commission the constitutional authority to issue decrees instead of just the SPA Presidium.22 While the constitution devotes considerable space to the functions of the above state institution, it also proclaims briefly but critically that the DPRK “shall conduct all activities under the leadership of the Work- ers’ Party of Korea (WPK).”23 Designated chairman of the Workers’ Par- ty of Korea in 2016, Kim Jong Un thus heads the party, the military, and the state (like the Chinese leadership today). From the beginning, the Workers’ Party of Korea has had its own charter and political structure, starting with its Central Committee.24 Found in all levels of government, the Workers’ Party of Korea leads all policy initiatives that its respective governmental counterparts (ministries and agencies) then administer.25 While not referenced as substantively within the constitution compared to the legal functions of other institutions, the role of the party remains an important dynamic to explore for future scholarship (and likewise the military).26

Ideologies

Over the years, the constitution has illustrated shifts in ideological discourse and priorities, such as in communist and socialist language, national development, national security, and hereditary succession. Each Kim leader has fashioned ideological discourse to suit his national priorities, with Kim Jong Il building upon that of his father and Kim Jong Un doing the same with both his father and grandfather. The socialist nature of the DPRK Constitution has been strong from the start given its communist origin. Its discourse is explicitly and firmly grounded in socialism, titled the Socialist Constitution since 1972. The 12 Beyond Sham: The North Korean Constitution first article proclaims that the DPRK is “an independent socialist State representing the interests of all the Korean people.” As such, the socialist narrative of the constitution describes the necessity of a “revolutionary struggle.”27 Meanwhile, the state strives for “the complete victory of socialism in the northern half of Korea” and to “reunify the country on the principle of independence, peaceful reunification, and great national unity.”28 Kim Il Sung indigenized the concept of Marxist-Leninism by introducing juche philosophy, “a creative application of Marxist-Lenin- ism to our own country’s reality,” into the 1972 constitution.29 He was credited with using the term frequently during his guerrilla days, and by the 1960s, juche socialism as “socialism of our style” (urisik sahoejuui) was already party parlance (Armstrong 2003, 190). Juche is often trans- lated simply as self-reliance or self-determination, but it is about resort- ing oneself to put the nation first in all aspects, especially based upon the three pillars of independence, self-sustenance, and self-defense.30 In 1992, in response to the collapsed Soviet bloc, constitutional reference to Marxism-Leninism disappeared as did the word “communism” in 2009. Juche thus becomes a nationalist ideology.31 In support of juche, Kim Il Sung incorporated other national initiatives into the Socialist Constitution, such as the Chollima Movement to accelerate socialist construction (named after the mythic winged horse that gallops leagues),32 the Chongsanri spirit and method in which su- periors mix with the masses to resolve problems and rouse political enthusiasm,33 and the Taean work method, which places all economic management under party committee leadership, emphasizes greater politicization of work, and promotes better communication between management and laborers (Kim 1981).34 These concepts encouraged a socialist work ethic for both political and economic purposes. Kim Il Sung pursued additional principles such as the Three Revolutions of technology, culture, and ideology, later encapsulated as the Three-Rev- olution Red Flag Movement to accelerate socialist construction.35 Ref- erences to technological and cultural revolutions are found throughout the chapter on culture in the constitution.36 As for ideology, Kim Il Sung also espoused the ideas of democratic centralism and a monolithic ideological system (Fukushima 1975). The former, which he called “iron unity,” is a principle all state organs must follow,37 and the latter is most clearly manifested separately from the constitution in the Ten Principles of a Monolithic Ideological System, which is a detailed set of command- ments every citizen must follow, essentially pledging loyalty to the Kim leader and the party line (to be addressed in the next section). Patricia Goedde 13

In matters of national security, Kim Il Sung introduced the military-first principle of seongun, but it was Kim Jong Il who owned this principle in practical terms. The elevation of the NDC in 1992 and Kim Jong Il as its chair essentially signifies the militaristic identity of the North Korean state and Kim Jong Il as its commander-in-chief. In 2009, the constitution was revised to prioritize seongun, placing it equally with juche.38 This was the same year that the NDC chair was recognized as the supreme leader. Soldiers were also added as a subcategory of the workers in the constitution in 2009, recognizing and legitimating their important role within the state.39 After his death, Kim Jong Il’s contribution to national defense is recognized in the revised preamble of the 2012 constitution, which credits him with developing North Korea via seongun politics into “an invincible politico-ideological power, a nuclear state, and an unchallengeable military power.” Military and nuclear capability fuses with national identity, which Kim Jong Un brings full circle by renaming the NDC as the State Affairs Commission, effectively cementing the military-nuclear state as part of his inherited destiny. While seongun achievement is attributed to Kim Jong Il in the constitution’s preamble, Kim Jong Un has borrowed and expanded upon the byeongjin principle from his grandfather’s ideas of parallel development in defense and economy in the 1960s. His objective has been to pursue national defense and economic development simultaneously, thus demoting the military as the sole priority (Frank 2014). After proving nuclear capability with a successful hydrogen bomb test in Septem- ber 2017, Kim Jong Un turned his attention to economic development (discussed in the last section). Each successive leader, Kim Jong Il and Kim Jong Un, has revised the constitution to immortalize and sanctify his respective father, thus legitimating his own power to rule based on the authority of his bloodline. Simultaneously, the successor heads a new position in a critical institution to prove advancements in nation building. The constitution serves to legitimize the inheritance of power to the next male lineal de- scendant of the Kim Il Sung family line. This is especially evident in the preamble, which provides a historical legacy of Kim Il Sung as the founding father of North Korea and attributes nation building to him and later his deceased son Kim Jong Il. Kim Il Sung became the eternal president in the 1998 constitution (called the Kim Il Sung Constitution), four years after his death. A year after his death in 2011, Kim Jong Il’s name was added to the preamble alongside Kim Il Sung to recognize his equal role in nation building. Kim Jong Il is also recognized as an eternal leader, such as at the First Session of the 14th Supreme People’s Assem- 14 Beyond Sham: The North Korean Constitution bly in 2019 when “all the participants observed a moment’s silence in reverence for Kim Il Sung and Kim Jong Il, eternal leaders of the WPK [Workers’ Party of Korea] and the Korean people” (Choe 2019, 6–7). In the latest revision of the preamble, the efforts of Kim Il Sung and Kim Jong Il are consolidated more closely as father-son, with the son recognized for effecting juche via seongun. The constitution memorializes their rule, conferring further familial legitimacy upon Kim Jong Un, and in effect legally preserving the sacredness of the deceased Kim fathers and extolling them under the precept of “Kimilsungism-Kimjongilism” which Kim Jong Un explains in his speech at the most recent SPA Ses- sion in April 2019:40

Modelling the whole society on Kimilsungism-Kimjongilism is the highest programme of the Workers’ Party of Korea and the government of the [DPRK] and the general direction and general goal of the construction of a socialist State. The revolutionary line of independence should be carried out in State building and activities. Independence is the political philosophy of our Republic, and it constitutes the core of the Kimilsungism-Kim- jongilism ideas of State building.

Essentially, Kimilsungism-Kimjongilism encapsulates juche, seongun, and the accompanying socialist prerogatives of the DPRK government with Kim Jong Un as the rightful heir to carry out their family-party-state-military legacy. The constitutionally ideologized hereditary succession departs from the patterns of China and Vietnam, both of which also respectively added Mao Zedong Thought and Ho Chi Minh Thought to Marxism-Lenin- ism in their constitutions and as part of national leadership glorification, but did not go so far as to foster family generational succession. The fact that a socialist regime would allow hereditary succession would be antithetical to vanguardism, that is, having a workers’ party, not a family elite, represent the collective interest. However, when a strong leader aligns a Leninist-based party with Confucian traditions of familial-patri- archal authority,41 the revival of a Korean monarch upholding principles of filial piety (by both benevolence and violence) and patrilineal succession is not so farfetched. While administrative practices and politics during the Joseon dynasty incorporated a remonstrance mechanism to check the undulating powers of kings, the resulting absolute, socialist monarchy based upon bloodline in North Korea calls for further probing of hybrid constitutional paradigms vis-à-vis monarchies beyond the oft-binaries of absolute monarchy versus communist regime, or absolute monarchy versus constitutional monarchy. Patricia Goedde 15

Citizen’s Rights and Duties

The claim that the DPRK Constitution is a sham, window dressing, or a dead letter would be the most relevant when it comes to the protection of citizens’ rights.42 Countless NGO reports, defector testimonies, and the 2014 “Report of the UN Commission of Inquiry on Human Rights in the DPRK” prove the abysmal record of rights protection when it comes to the whole array of civil, political, economic, social, and cultural rights over the past decades.43 Textually, the DPRK Constitution clearly states that citizens have both rights and duties in relation to the state under a collectivist principle.44 Under the heading of “The Fundamental Rights and Duties of Citizens,” many of the enumerated rights sound familiar under democ- racies:45

• to vote and be elected • freedom of speech, press, assembly, demonstration, and association • freedom of religious belief • the right to work, leisure, free medical care, and education • freedom to engage in scientific and cultural pursuits • freedom of residence and travel • equal social status between women and men

Under the constitution, citizens also have the right to submit complaints and petitions to the state, as well as the right not to have their home, person, or private correspondence searched without legal grounds.46 In return, citizens’ duties are enumerated in the constitution. They shall safeguard “the political and ideological unity and solidarity of the people” and “abide by the laws of the State and the socialist standards of life.”47 It is a “noble duty” to work, to safeguard state property, and to “increase their revolutionary vigilance and devotedly fight for the security of the State.”48 Last but not least, the “supreme duty and honor” of citizens is military service as required by law to defend the nation.49 As for noncitizens, the right to asylum is granted to foreign nationals who are persecuted for principles enshrined in the DPRK Constitution such as national independence and socialism.50 Like the 1936 Stalinist Constitution, the DPRK’s earliest 1948 constitution uses the language of “public rights and duties,” but these rights and freedoms were conditional upon the principle of being a proper communist (Scalapino and Lee 1972, 791). Today, they are conditional upon the principle of being loyal to the supreme leader. From a young 16 Beyond Sham: The North Korean Constitution age, North Koreans have had to memorize the Ten Great Principles of the Monolithic Ideology System (later substituting “Leadership” for “Ideological”; Isozaki 2017, 20), a set of values pledging allegiance to the supreme leader and socialist nationalism.51 Accordingly, “socialist law-abiding committees” and self-censure sessions are meant to regulate whether people have been respecting the supreme leader and con- forming to the socialist way of life. Citizens’ duties to the state thus take precedence over the protection of individual civil and political rights, meaning that the constitution itself has never served as an effective protective covenant of individual rights especially where state dissent is concerned. In 2009, the DPRK Constitution introduced the phrase “human rights,” claiming that the state shall safeguard the interests of, and respect and protect the human rights of the working people.52 The DPRK government explains that the Socialist Constitution is the basic law defining citizens’ fundamental rights and duties, but that further laws and regulations were necessarily enacted for human rights provision (Kim 2017, 18). These claims would appear disingenuous to the international human rights community, especially given the findings of the 2014 “Re- port of the UN Commission of Inquiry.”53 But the North Korean idea of (human) rights is much more nuanced than simply one of defiance and disregard. The inclusion of human rights language is not about civil and political rights but a consistent political statement about collective interests (Cho 2018). Built upon historical layers of Confucian, Marxist, and juche philosophies, the North Korean conception of human rights lies in the duty-based contexts of the familial, the collective, and the sovereign (Weatherley and Song 2008; Song 2009). Its socialist conception of human rights emphasizes national independence from colonial and imperialist powers, claims aligned socialist interests of the working masses, and eschews the weaponized talk of human rights by the Unit- ed States—the last point being that its people will never have human rights while under the threat of war. Nonetheless, the DPRK government has been attentive to international human rights discourse since the 1980s (Weiser 2017) and more so after becoming a member of the United Nations since 1991. It has ratified six international human rights treaties and engages in the Universal Periodic Review (UPR) process required of members,54 though not to the extent satisfactory to treaty bodies and human rights advocates (Choi et al. 2017). In light of treaty responses and UPR recommendations, the DPRK has legislated and amended more laws since the early 2000s, for example, criminal proce- dure laws and those targeting people with disabilities, women, and chil- Patricia Goedde 17 dren.55 Their effectiveness across the country is questionable, however, as North Korean interviewees in South Korea have reported unimproved conditions in their experiences before leaving their home country, especially accountability for sexual violence against women and girls.56 North Korean legal institutions are in line with the Asian socialist legality of other Asian states, such as China and Vietnam, following the Soviet constitutional model, which is statist-based, not rights-based, meaning that its purpose is for the state to monopolize control and order (Partlett and Ip 2016). Under the accompanying principle of democratic centralism, legal institutions must then administer the party line since the law is understood to be an instrument for compliance (Partlett and Ip 2016). Thus, the public procuracy (state prosecutor’s office) and courts prioritize the protection of state interests over that of the individual. The prosecutor’s office works to ensure strict legal compliance by all state bodies, enterprises, and citizens and, importantly, that all decisions and directives of state bodies conform with those of the SPA, the chair of the State Affairs Commission, the State Affairs Commission, the SPA Presidium, and the Cabinet.57 This means that although the prosecutor’s office investigates and prosecute crimes, they also have the unique function of auditing other state organs. The court must also “ensure that institutions, enterprises, organizations and citizens abide strictly by State laws and staunchly combat class enemies and all law-breakers,”58 illustrating more of its role in sentencing as opposed to interpreting the constitution, decisions, directives, and laws, which is reserved for the executive body. Given democratic centralism, the judiciary does not serve as a check-and-balance system against the SPA, the SPA Presidium, or the state leader. No constitutional court or equivalent judicial review process exists. Instead, the courts and prosecutors are accountable to the SPA Presidium or to the SPA in session. Under the constitution, the SPA can appoint or remove the Prosecutor-General and can elect or transfer the president of the Central Court, while the SPA Presidium has the authority to elect or transfer Central Court judges and lay assessors.59 To be especially noted under the 2019 amendments is that both head institutions of the prosecutor’s office and the court are now preceded by “Central” (jungang, 중앙) instead of “Supreme” (choego, 최고), sig- nifying both their centralization and subordination to the leadership of Kim Jong Un.60 The prosecutor’s office and the courts are found at all levels na- tionally, from their respective central offices to their provincial, city, or county level counterparts. Although the constitution claims that the court has independence in administering justice,61 the prosecutor’s of- 18 Beyond Sham: The North Korean Constitution fice generally wields greater power in relation to the courts given the former’s investigative authority and claims to evidence (Baik 2016). Meanwhile, the constitutionally guaranteed right to counsel for the ac- cused is inconsistent—sometimes offered or accepted, more often based on calls for leniency than vigorous advocacy, and not assigned at all for cases undertaken by the Ministry of State Security or serious antistate crimes (Korean Bar Association 2014).62 However, it must be remem- bered that not all cases before the courts regard political crimes since they also decide an array of criminal and civil law cases (e.g., divorce) as well as arbitrate contractual disputes between parties.

Economic Development

Just as the constitution denotes changes in state leadership and ideology, so also does it reflect intermittent shifts in economic policy. In the after- math of colonialism, the 1948 constitution did not explicitly reference a socialist economy, but proclaimed state confiscation of all land and properties owned by the Japanese governments, its nationals, pro-Jap- anese elements, and Korean landlords.63 The state, cooperative organizations, and those who worked the land themselves were permitted to have private ownership.64 Also allowed were the right to inherit private property, the freedom to run private enterprises, and state taxation (Yoon 2004).65 However, as Kim Il Sung moved toward building an independent and industrialized socialist nation, the 1972 Socialist Constitution abolished these capitalist remnants, devoting an entire chapter to the economy, stating first that it is socialist-based and self-supporting. In- stead, advancements in a socialist economy via social cooperative organizations, technological revolution, agricultural modernization, and juche orientation were emphasized throughout. The constitution declared that industrialization was accomplished.66 Meanwhile, eight-hour working days and a minimum age of sixteen years were set forth as labor standards (though not consistently observed given underemploy- ment, overseas labor, and child labor).67 Taxation was also abolished as “a hangover of the old society.”68 Kim Il Sung’s visions of becoming an industrialized nation had been realized with steady economic growth into the 1970s, outpacing that of South Korea, but began to decline from the late 1970s and early 1980s. Heavily reliant on trading with the Soviet Union, China, and Eastern European countries, the North Korean economy suffered as its major trading partners moved from barter trade to hard currency sys- Patricia Goedde 19 tems. As both the 1948 and 1972 constitutions state, foreign trade was to be conducted by the state or “under its supervision.”69 Unable to service its foreign debts, however, the DPRK government had to turn to other ways to amass foreign currency. To attract foreign investment, the SPA promulgated the first Joint Venture Law in 1984 after Kim Il Sung care- fully observed China’s legal framework and special economic zones. In 1992, the constitution was revised to permit equity and contractual joint venture enterprises, alongside enactment of the Foreign Investment Act (1992), Foreign Enterprise Act (1992), and the Contractual Joint Ven- ture Act (1992), among others.70 Constitutional changes sometimes occur after the fact, acknowledg- ing, updating, and essentially legalizing undergoing developments. In 1998, the constitution was revised to include the language of “special economic zones” to its earlier amendment regarding foreign investment.71 The creation of the Rajin-Sonbong Economic and Trade Zone had already been decided upon in 1991, with an official ceremony open to potential foreign investors in 1996. (Over two dozen special economic zones have been designated as of 2019.) Meanwhile, other constitutional amendments in 1998 illustrate the expanded scope of allowable economic activities in light of the famine and the growing failure of the state’s public distribution system (Yoon 2004). The state officially had to relax its monopoly on private property and foreign trade as citizens pursued income and sustenance of their own accord. For example, social cooperative organizations could own private property, and citizens could earn income from “sideline activities” such as garden farming or other legal commercial activities.72 Travel with license was permitted so that citizens could continue pursuing business for their livelihood.73 Yoon Dae-Kyu notes that the 1998 revisions also introduced market economy principles such as an “independent cost accounting system” and “economic levers as prime costs, prices, and profits,” but that this did not necessarily mean acceptance of a market economy (2004, 1303). This changed in the next two decades, however, as more of the populace had to turn further to their own devices to survive, leading to bottom-up marketization throughout the nation (Smith 2015). Under Kim Jong Il, state economic reforms in the early 2000s recognized semiprivate trading companies and general markets, and penalties were downgraded for crossing the border for food or trade (Smith 2015). The licensing (tax- ing) of markets and trading companies both earned and saved the state money for not having to provide social and economic provisions (Smith 2015).74 However, state efforts to curb private markets and to regain its role by a sudden revaluation of currency in 2009 led to disastrous 20 Beyond Sham: The North Korean Constitution effects, wiping out the savings of many and the state none the better off in being able to provide for its citizens. Kim Jong Il passed away in 2011, having succeeded in achieving a nuclear-capable state but failing in providing economic prosperity. Instead, Kim Jong Un has taken on the ideological legacy of improving the nation’s economic livelihood on the basis of byeongjin, especially challenging in light of UN and US sanctions due to nucle- arization and missile testing. Reflecting his priorities, the most recent constitutional amendments in 2019 evidence a few minor textual changes in the Economy Chapter that express key developments: now adding “IT” to modernization and scientificization; deleting language about the hard labor of workers; “decisively” increasing the role of the Cabinet; and “maintaining credit-worthiness” while improving trade structure.75 These amendments underscore Kim Jong Un’s drive to not only modernize the country via science, technology, and information, but also show its commitment to healthy foreign trade and to have the state retain firm control over national economic development. While the DPRK has made constitutional modifications and enacted laws to signal shifts in national economic development, the state has yet to openly express to a socialist market economy in its constitution as Vietnam did in 1992 along with simultaneous mention of socialist rule of law and human rights, and China in 1993 with constitutional recog- nition of socialist rule of law in 1999 and human rights in 2004 (Yoon 2004; Fu and Buhi 2018). The DPRK should be mindful not only of the paths of economic reform taken by China and Vietnam but of their constitutionalism as well. While all three share a history of Asian socialist legality, they diverge in their party-based approach. The governments of China and Vietnam have acknowledged the role of law in accommo- dating market reform and that a certain degree of responsiveness to the citizenry is necessary for legitimacy, thus remedying for state corruption for example (Fu and Buhi 2018). However, while Vietnam transformed to a diffused, competitive party base more accepting of international input and rights norms, China has retained strong, central party control throughout its political structure and regulates accordingly for civil dissent (Fu and Buhi 2018) (notwithstanding current domestic deliber- ations into expanding constitutional review). Given these examples of Vietnamese and Chinese constitutionalism navigating both a socialist market economy and accompanying socialist rule of law, North Korean leadership is unlikely to do so at the risk of losing its absolute power. Indeed, analyst Ruediger Frank (2018) asks if the North Korean case should even qualify as a “socialist” market economy, noting the ultrana- Patricia Goedde 21 tionalist ideology and the existence of diversified family conglomerates in Pyongyang that may imitate the developmental function of South Ko- rean chaebol conglomerates, thus theoretically chasing the East Asian Model (EAM) of economic growth led under authoritarian leadership in South Korea, Singapore, Taiwan, and China (Fu and Buhi 2018, 150, citing Peerenboom 2010). For now, how well Kim Jong Un can advance byeongjin to further modernize the nation under the current sanctions regime remains beholden to the geopolitics of the Korean Peninsula.

Conclusion

The DPRK Constitution has defied not only liberal democratic - inter pretations of constitutionalism but also close analysis of the enduring Leninist tradition among Asian socialist states. Even among its regional compatriots, the DPRK Constitution is viewed as somehow less than, an exception even among authoritarian constitutionalism for its presumed one-man-panoptic totalitarianism, and thus suffers from erasure in the discourse on Asian socialist constitutionalism. This article has sought to remedy this gap by analyzing North Korean constitutional changes since the founding of the state, addressing key themes such as the leadership and state institutions, ideologies, rights versus duties, and economic development. An analysis of constitutional developments in North Korea provides a deeper narrative about the workings of the state, taking into account purposes other than limiting state power and rights protection, such as nation building, national security, regulating society, and modernizing. Examining the leadership and state institutions via constitutional chronology delivers a noteworthy tale of how Kim Il Sung set out to nation build, transforming state institutions and their powers to situate himself as ruler; how Kim Jong Il next asserted authority not by mere virtue of being son but by simultaneously maneuvering and ascending the National Defense Commission on militaristic priorities; and finally how Kim Jong Un followed by institutionally reinventing the NDC into the State Affairs Commission, making himself chair. The constitution also delineates how each leader’s authority to issue executive orders de- rives from their respective central institutional positions, and Kim Jong Un’s elevation of his commands in the hierarchy of laws become all the more evident. All throughout patrilineal rule, each leader has succes- sively, and successfully, headed the intertwined trinity of party, state, and military. 22 Beyond Sham: The North Korean Constitution

In addition to institutional creations, each leader has crafted ideology to suit his ruling priorities. Kim Il Sung indigenized Marxist-Leninist principles with his own juche philosophy of nationalist independence, whereas Kim Jong Il expanded upon this ideology building up seongun, the military-first principle in defense of the nation and its sovereignty. With Kim Jong Un’s advent, the constitution extols these ideologies, even including nuclear status into the preamble. Kim Jong Un has regenerated his grandfather’s byeongjin principle of parallel military and economic development, but constitutional emphasis rests on Kim- ilsungism-Kimjongilism to strengthen not just the preceding ideologies of his forefathers but also his legitimacy by patrilineal design, harking back to Korean monarchical rule. Socialist and Confucian modes of governance converge in terms of a duty-based, collectivist approach to rights. The constitution outlines rights and duties that have remained fairly consistent throughout constitutional revisions, but the condition of loyalty applies. In line with democratic centralism, legal institutions such as the prosecutor’s office and the courts serve to uphold party policies as well as institutional and individual allegiance to the state. The newly added phrase of “human rights” to the constitution was partly in response to international human rights discourse but retains a North Korean interpretation that claims a merging of collective and state interests toward national sovereignty and anti-imperialism while still aligning with an Asian socialist legality. The DPRK Constitution has also denoted economic reforms under each leader, gradually permitting foreign investment, special economic zones, and less regulation over citizens’ pursuit of sustenance, sup- plemented by regulatory frameworks and criminal code modifications. The most recent amendments in 2019 show Kim Jong Un consolidating and legitimizing his power by pressing for further economic development, explained in the constitution by focusing on modernizing efforts through science and technology. At its most basic, the DPRK Constitution is a comprehensible, il- lustrative document that aligns with the socialist history of the state. It demarcates the basic political structure of the state, ideological evolution, rights and duties of the socialist citizen, and general parameters of economic activity. It also sanctifies the past leaders, Kim Il Sung and Kim Jong Il, in order to legitimate the rule of Kim Jong Un as the supreme leader via his positions of chair of the State Affairs Commis- sion, commander-in-chief, and general secretary of the Workers’ Party of Korea. It shed the language of Marxism-Leninism and communism in favor of a more nationalistic, “our-own-style” version of socialism. Patricia Goedde 23

Citizens’ rights are inherently conditioned upon fulfilling their duties to the state, though the state’s failures in providing socioeconomic welfare to the general population compelled constitutional amendments to relax the state’s exclusive control over trade, investment, and entrepreneurial activities. Whether North Korea will one day follow the examples of China and Vietnam to articulate pursuance of a socialist-based market economy and socialist rule of law remains yet to be seen. Nonetheless, the constitution remains a relevant and uncontested politico-legal instrument in formulating North Korean state governance.

Notes

Patricia Goedde is associate professor at Sungkyunkwan University, School of Law, in Seoul, Korea, where she was also associate dean of academic affairs. She received a JD and PhD in Asian and comparative law from the University of Washington, School of Law and is a licensed attorney of the Washington State Bar Association. Her teaching and research subjects are in the areas of East Asian comparative law, international human rights law, transnational legal mobilization, public interest law- yering, refugee advocacy, and clinical legal education. She is a core faculty member of the Social Sciences Korea (SSK) Human Rights Forum, and serves on various Korean committees, including the board of directors of the Korea Human Rights Foundation. She has published on various legal aspects in journals such as the Asian Journal of Law and Society, Cornell International Law Journal, Human Rights Quarterly, Fordham International Law Journal, and Asian Perspective. She can be reached at [email protected]. This work was supported by the Ministry of Education of the Republic of Korea and the National Research Foundation of Korea (NRF-2016S1A3A2925085). The title borrows from the subheading “Beyond Shams: The Lessons of Authoritarian Constitutions” in the introduction to Constitutions in Authoritarian Regimes edited by Tom Ginsburg and Alberto Simpser (2014). 1. The states include the Albania People’s Republic (1944), People’s Repub- lic of Poland (1944), People’s Republic of Bulgaria (1944), Socialist Republic of Romania (1945, 1947), Hungarian People’s Republic (1945), Socialist Republic of Czechoslovakia (1945), Democratic Republic of Vietnam (1945), Democratic Peo- ple’s Republic of Korea (1948), People’s Republic of China (1949), and German Democratic Republic (1949). Mongolia’s first constitution was adopted in 1924, and Cuba’s came later in 1959. Constitutional adoptions do not always match the founding date of the socialist state however. 2. 1948 Const. chaps. III–VI. 3. Ibid., chaps. V–VI. 4. 1972 Const. arts. 94–96. 5. 2016 Const. arts. 100, 102; 2019 Const. art. 103. 24 Beyond Sham: The North Korean Constitution

6. 2016 Const. art. 103. 7. 2019 Const. art. 104. 8. Ibid. art. 105. 9. Ibid., arts. 107, 110(2). 10. Ibid. arts. 106, 112. 11. Ibid., arts. 91, 116. 12. Ibid. art. 97. 13. Ibid. art. 116(4). 14. Ibid., arts. 97, 116(2). 15. Ibid., arts. 116(5), (6). 16. Ibid., arts. 125(2), (12). 17. Ibid., art. 150. 18. For a recent assessment of the vast body of laws in North Korea, see Weiser (2018). 19. 2019 Const. art. 116. 20. In the North Korean translation, beobnyeong encompasses both laws and ordinances (regulations). 21. 2019 Const. art. 116(6). 22. Ibid., arts. 111, 120. 23. Ibid., art. 11. 24. For a current breakdown, see Madden (n.d.). 25. For a history of the basic structure of the Workers’ Party of Korea and its relation to other governmental bodies, see Scalapino and Lee (1972, 730–731). 26. For historical, comparative examinations of the roles of the party and the military in North Korea, see Scalapino and Kim (1988). 27. 1972 Const. art. 3. 28. Ibid., art. 9. 29. Ibid., art. 4. 30. For an official exposition ofjuche ideology, see Kim Jong Il (1997). 31. On the role of nationalism in Korean communist ideology, see Scalapino and Lee (1972, 870–871). 32. 1972 Const. art. 13 (but later dropped with the Three-Revolution Red Flag Movement added in art. 14). 33. Ibid., art. 12. 34. Ibid., art. 30. 35. 2016 Const. art. 14. 36. 1972 Const. chap. III. 37. Ibid., art. 5. 38. Ibid., art. 3. 39. Ibid., arts. 4 and 8. 40. “Chairman KJU Delivers Policy Speech” (2019). 41. For more on the historical comparisons of leadership succession in China, Vietnam, and North Korea, see Pye (1988) and Kim (1988). 42. Green (2017) cites Justice Michael Kirby’s exchange with a North Korean official on the point of constitutional rights being a dead letter. Patricia Goedde 25

43. See, for example, the “Report of the UN Commission of Inquiry on Human Rights in the DPRK” (2014). 44. 2019 Const. art. 63. 45. Ibid., arts. 66–68, 70–75, 77. 46. Ibid., arts. 69, 79. 47. Ibid., arts. 81, 82. 48. Ibid., arts. 83–85. 49. Ibid., art. 86. 50. Ibid., art. 80. 51. A translation is available from Citizens’ Alliance for North Korean Hu- man Rights at www.internationallawbureau.com/wp-content/uploads/2016/12/ Ten-Great-Principles-of-the-Establishment-of-the-Unitary-ideology.pdf. 52. 2016 Const. art. 8. 53. See Yeo and Chubb (2018) for discussions on the processes and impact of North Korean human rights activism. 54. The DPRK ratified the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights in 1981; the Convention on the Rights of the Child in 1990; the Convention on the Elimination of Discrimination Against Women in 2001; the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution, and child pornography in 2014; and the Convention on the Rights of the Persons with Disabilities in December 2016. (The DPRK tried to withdraw from the ICCPR in 1997 but was denied by the Human Rights Committee on grounds that the treaty did not permit withdrawal.) 55. Law on the Protection of the Disabled (Decree No. 3835, enacted 6/18/2003, amended 11/21/2013 by Decree No. 3447); Law on the Protection of Women’s Rights (enacted 12/22/2010 by SPA Presidium Decree No. 1309, amended 7/5/2011 by SPA Presidium Decree No. 1743, amended 6/30/2015 by SPA Presidium Decree No. 566); Law on the Protection of Children’s Rights, enacted 12/22/2010 by SPA Presidium Decree no. 307, amended 3/5/2014 by SPA Presidium Decree No. 36). 56. See, for example, Human Rights Watch (2018) and Gang and Hosaniak (2018). 57. 2019 Const. art. 156. 58. Ibid., art. 162(2). 59. Ibid., arts. 91(11), 91(12), 116(12). 60. Bukhan sahoejuuiheonbeob gaejeong naeyong (2019). 61. 2019 Const. art. 166. 62. Ibid., art. 14. 63. 1948 Const. art. 5 and 6. 64. Ibid., art. 6. 65. Ibid., arts. 8, 9, and 29. 66. Ibid., art. 24. 67. Ibid., arts. 28, 29. 68. Ibid., art. 33. 69. Ibid., art. 5; 1972 Const. art. 34. 26 Beyond Sham: The North Korean Constitution

70. Laws and Regulations (2012). 71. 1998 Const. art. 37. 72. Ibid., arts. 22, 24. 73. Ibid., art. 75. 74. Ibid., 75. 2019 Const. arts. 26, 27, 33, 36, 50.

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