WORKSHOP REPORT

Constitutional Design in North

and South Korea
May 2021
NCNK
The National Committee on North Korea (NCNK) supports and facilitates principled
engagement between the U.S. and North Korea in order to promote peace and security on the
Korean Peninsula and to improve the lives of the North Korean people.

NCNK is a non-governmental, non-partisan organization whose membership reflects a broad

range of perspectives and subject-matter expertise related to North Korea. NCNK serves to
share information among its members, advance their work, and provide the broader public
with substantive and balanced information about North Korea. NCNK was founded in 2004 by
Mercy Corps, a global aid and development organization.

CONTACT
Honorary Co-Chairs: Amb. Tony P.
The National Committee on North Korea Hall and Amb. Thomas C. Hubbard
1111 19 St. NW, Suite 650
th
Advisory Committee: Bradley Babson,
Washington, DC 20036 Kelsey Davenport, Katharine Moon, Scott
[Link] Snyder, Randall Spadoni, Nancy Yuan,
info@[Link] and Philip Yun
@NCNKorea
Executive Director: Keith Luse

Copyright © 2021 by the National Committee on North Korea. All rights reserved.

1
 Workshop Report: Constitutional Design in North and South Korea

Introduction
In February 2021, the National Committee on North Korea (NCNK) virtually convened
a group of international experts to consider the commonalities and dis-commonalities
between the constitutions of the Democratic People’s Republic of Korea and of the
Republic of Korea. Thirteen scholars with specialties in constitutional design,
constitutional law, and Korean law participated in the conference, identifying areas of
both similarity and difference between the two constitutions. Participants came from
countries including the U.S., South Korea, China, France, Germany, Singapore, and
New Zealand. (The conference host also extended an invitation for North Korean legal
scholars to participate, which was declined.) This report aims to summarize the findings
of the conference, although it does not necessarily reflect the views, in whole or in part,
of any individual participant.

English-language scholarship on North Korean law has been scarce, in part because of
the difficulty of conducting research on the topic and in part, presumably, because of
the assumption that written law means little in the country. Much of the scholarship
that has been published focuses on North Korean laws related to economic policy and
foreign investment, which might serve as indicators of the country’s willingness to
follow in the path of other Asian one-party states and engage in economic reform and
opening.1 Detailed studies of the North Korean Constitution are relatively rare.2 Studies
of South Korean law, in contrast, are more extensive and capable of entering into
greater analytical depth.3

However, there has been little scholarship that compares the constitutional structures of
the two Koreas, or that traces how the legal systems of both North and South have

1 See Darren C. Zook, “Reforming North Korea: Law, Politics, and the Market Economy,” Stanford Journal
of International Law, Vol. 48, No. 131 (2012), pp. 131-183; and In-Ho Song, Hye-Shin Cho, and Euna Lee,
“The Past, Present, and Future of North Korean Economy: An In-depth Study on the North Korean
Constitution’s Economic Clauses and the Economic Reality,” International Journal of Korean Unification
Studies, Vol. 25, No. 1 (2016), pp. 199-233.
2 See Dae-Kyu Yoon, "The Constitution of North Korea: Its Changes and Implications," Fordham

International Law Journal, Vol. 27, No. 4 (April 2004), pp. 1289-1305; and Patricia Goedde, “Beyond Sham:
The North Korean Constitution,” Asian Perspective, Vol. 44, No. 1 (Winter 2020), pp. 1-29.
3 See, for example, Tom Ginsburg, "The Constitutional Court and Judicialization of Korean Politics," in

Public Law in East Asia, Albert H.Y. Chen and Tom Ginsburg, eds. (Ashgate Publishing Limited, 2013).

2
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

evolved since the nation’s division.4 The NCNK conference, with support and input
from Professor David Williams, Executive Director of the Indiana University Law
School’s Center for Constitutional Democracy, as well as from James Min of LimNexus
LLP, aimed to lay out a foundation for such scholarship, and potentially for future
international engagement addressing the topic. Conference participants considered four
broad topical clusters in addressing similarities and differences between the two
constitutions:

● Legality, constitutional interpretation, and constitutional enforcement

● Popular sovereignty, elections, and the role of the legislature
● Executive structure
● The role of political parties

Unsurprisingly, conference participants found extensive differences between the two

constitutions, both in institutional design and in their underlying assumptions about
the relationship between the state and society. Yet the two documents are not totally
distinct: both allow for a very strong executive department, and both exhibit certain
features to guard against subversion of the domestic political order. Yet these
constitutional features have evolved in different directions over the decades. The
various iterations of North Korea’s Constitution have moved away from Marxism and
toward an ideological structure centered around the Kim family. Constitutional changes
in post-democratization South Korea, in contrast, have sought to place certain
guardrails on the presidency and institutionalize the judiciary as the ultimate protector
of the democratic order.

It is clear that these two constitutional systems, based on some shared traditions and
history, and some very different traditions and history, have convergent and divergent
aspects. We can best know a legal system in context—in its own time and place, and in
context of its neighboring and related legal systems. Exploring these similarities and
differences in both text and practice is necessary for understanding the constitutional and
political dynamics of each country and of the Korean peninsula as a whole.

4One exception is Justine Guichard, “In the Name of the People: Disagreeing over Peoplehood in the
North and South Korean Constitutions,” Asian Journal of Law and Society, Vol. 4, No. 2 (November 2017),
pp. 405-445.

3
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

Workshop Participant List

CAI Yonghau
Yanbian University School of Law James Min
LimNexus LLP
Zach Elkins
University of Texas at Austin Mila Versteeg
University of Virginia School of Law
Patricia Goedde
Sungkyunkwan University School of Law KIM Yonghoon
Sangmyung University Law School
Justine Guichard
Université de Paris Jaclyn Neo
National University of Singapore
Horst Hammen
University of Giessen SUNG Nak-in
Seoul National University
Olli Hellman
University of Waikato David Williams
Indiana University Maurer Law School
David Kenny
Trinity College Dublin Law School ZHANG Shoudong
China University of Political Science and
Keith Luse Law
National Committee on North Korea

The following workshop summary does not necessarily reflect the views, in part or in whole, of
any individual participant. Professional affiliations are provided for informational purposes only.

4
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

Workshop Summary
The workshop Panel divided discussion of the North and South Korean constitutions
into four distinct clusters representing distinct conceptual or structural issues for
consideration. The following summary represents key findings and questions raised
during the course of the workshop.

CLUSTER ONE: LEGALITY, CONSTITUTIONAL INTERPRETATION, AND

CONSTITUTIONAL ENFORCEMENT

The Panel concluded that the constitutions of the Democratic People’s Republic of Korea
(DPRK) and the Republic of Korea (ROK) rest on very different conceptions of the role of
law and of popular sovereignty. This first cluster, on legality, concerns the role of law.
The next cluster, on elections and the legislature, concerns the role of popular sovereignty.

The Panel found that the primary role of the DPRK Constitution is to organize state
power and to legitimate state sovereignty. Correlatively, the role of law in general is to
project and facilitate the use of state power—in other words, to govern the activity of
citizens according to the dictates of the governing power, including the State Affairs
Commission (SAC), the Workers’ Party of Korea (WPK), and the Supreme People’s
Assembly (SPA) and its Presidium. Frequently, this constellation of ideas is called “Rule
by Law”: the law is an instrument by which the government rules. As will be discussed
in the next cluster, the DPRK Constitution rests on the further belief that the government
will use the law to serve the good of the people.

By contrast, the ROK Constitution is designed not merely to organize state power but
also to limit it by providing an outside check, especially through the work of the
Constitutional Court. Correlatively, the role of law in general is at least partially defensive:
it gives citizens a means of protection and redress against the government. If wronged by
the government, citizens can sue in a court of law to vindicate their rights. Indeed, the
Constitutional Court even has the final say in impeachment proceedings against the
President, so that the law is supreme even over the most powerful office-holders.
Frequently, this constellation of ideas is called the “Rule of Law”: in theory, the law itself,
especially the Constitution, is the ultimate ruler and constrains what the government can
do.

These differing conceptions have important temporal consequences:

5
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

 The purpose of the ROK Constitution is, in part, to prospectively structure and
limit the government—in other words, to control the actions of officeholders.
 But the purpose of the DPRK Constitution is to recognize existing structures of
power that have been delineated by other means and in other fora.

As will be further elaborated in the analysis of the next cluster, these different notions of
legality and constitutionalism seem to derive from different notions of the relationship
between society and the state. For the ROK Constitution, society and the state are
different entities and have different interests. The purpose of legality, constitutions, and
checks and balances is to protect society against the state.

By contrast, the DPRK Constitution rests on a more monolithic and solidaristic

conception of the relationship between society and the state. In this vision, society and
the state do not really have different interests; rather, both are part of an organic whole
with shared interests. Indeed, society itself is not really segmented into different interest
groups because all desire, or should desire, the same good. That shared good is defined
through the ideology of democratic centralism, Juche, and Kimilsungism-Kimjongilism.5
As a result, rights are not conceptualized as the possession of individuals but rather as
based on the collectivist principle, “All for one, one for all.” In the terms of this ideology,
perhaps the most important shared good is protection from outside powers, so the
citizens look to the state for protection, rather than looking to the courts for protection
against the state. As will be explained in the discussion of the third cluster, on the role of
the executive, this monolithic conception is especially notable in the role of the Supreme
Leader, who represents both the state and the “unanimous will of the people.”

These different visions of the state/society relationship lead to different visions of

constitutional interpretation and enforcement. In ROK, the Constitutional Court is
charged with interpreting the Constitution, and citizens may realistically seek its
protection. By contrast, in the DPRK the SPA Presidium is charged with interpreting the
Constitution and rescinding unconstitutional state actions, and the public prosecutor has
the power to ensure that state actors conform to the Constitution’s requirements. Because

5“Juche” was first incorporated into the DPRK’s 1972 Constitution; it is generally understood to combine
elements of nationalism, socialism, militarism, reverence for the leader, and the pursuit of national
autonomy. The term “Kimilsungism-Kimjongilism,” which extends the concept of Juche and emphasizes
reverence for the words and actions of North Korea’s previous leaders, was introduced into official
rhetoric following the succession to Kim Jong Un, and incorporated into the Constitution in 2019.

6
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

the Constitution is essentially a political proclamation about the organization and

legitimacy of state power, it is neither necessary nor desirable to have an apolitical
interpreter such as a court. Similarly, in the ROK Constitution, the state of emergency
provisions are relatively specific and detailed, so that they can be the more readily
enforced. By contrast, in the DPRK the analogous provisions are considerably vaguer, so
that the state authorities can interpret the limits on states of emergency as they choose.

The Panel found that these foundational ideas recurred in each of the other clusters:

 In the DPRK, the roles of the legislature, the executive, and the party all were based
on the projection of state power from the governing structures to the citizens
through a single governing ideology.
 In the ROK, the roles of the legislature, the executive, and the parties all were based
on the limitation of state power through checks and balances, especially
competition for the support of voters.

CLUSTER TWO: POPULAR SOVEREIGNTY, ELECTIONS, AND THE ROLE OF THE

LEGISLATURE

The Panel concluded that the idea of popular sovereignty is central to the constitutions
of both the DPRK and the ROK. Both constitutions assert that ultimate sovereignty
derives from the people, and the Constitution of the DPRK repeatedly asserts that the
purpose of government is to serve the people. Nonetheless, in the two constitutions, the
definition of the people is somewhat different, and the way that the people manifest
sovereignty is substantially different.

The Definition of the People

On the definition of the People, the ROK Constitution ascribes sovereignty to the whole
of the people. By contrast, the DPRK Constitution uses at least two different definitions:
in some provisions, it defines the People as the whole people, just as the ROK
Constitution does, but in other provisions, it defines the People sectorally, as the working
people, soldiers, peasants, and intellectuals. This latter approach is common in socialist
constitutions.

The Exercise of Popular Sovereignty

7
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

In the ROK Constitution, the People exercise their sovereignty at three moments of the
governing process:

 The People give original consent to the government by authorizing the

Constitution, which creates, organizes, and structures their government;
 The People give continuing consent to the government by choosing their political
leaders in elections and by organizing political parties; and
 The People further check their government through the exercise of certain
individual rights such as free speech, petitioning, litigation, and similar activities.

At these moments, the People exercise their sovereignty directly, through their own
actions by authorizing the Constitution, choosing their elected representatives, and
mobilizing their rights to check the government. In other words, the ROK Constitution
embeds the idea of citizen democracy.

In this vision, again, the State and Society are distinct and have different interests, and
the State may not exercise power over society unless and insofar as Society has authorized
it to do so. The three forms of popular sovereignty thus constitute a check by the People
on their government, which, if unchecked might act in its own interest rather than the
interest of the people.

The DPRK Constitution manifests a very different conception of the exercise of popular
sovereignty: democratic centralism. According to this theory, the People exercise their
sovereignty through the organs of the state, and state actors in turn are charged with
protecting and advancing the good of the public. In the DPRK, that good is defined
according to a particular ideology of Kimilsungism-Kimjongilism, Juche, and other
indigenous elements. State actors are to instruct and educate the people and act for their
good, as defined by this national ideology, and thereby enable the people to lead socialist
law-abiding lives. Because these state actors exercise popular sovereignty on behalf of the
people under the theory of democratic centralism, the people are generally not
conceptualized as a check on the government.

In other words, in the ROK Constitution, the People exercise their sovereignty directly by
controlling their government; in the DPRK Constitution, the state exercises popular
sovereignty by acting for the people and the people’s good.

8
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

As a result, the exercise of popular sovereignty is quite different at the three moments
noted above.

At the original moment of constitution framing:

 In the ROK Constitution, “We the People of Korea” directly adopt the governing
document. These opening words remain in the current ROK Constitution, adopted
in 1987 as the country began its transition to democracy.
 By contrast, the lengthy preamble to the 1998 DPRK Constitution simply
announces the historical fact of the Constitution as a “Kim Il Sung constitution
which legally embodies Comrade Kim Il Sung’s Juche state construction ideology
and achievements.”

At the moment of elections:

 In the ROK, the people have significant control of the process. Voters choose their
representatives (1) from among a number of candidates representing a number of
parties; (2) after relatively free public deliberation; and (3) on a secret ballot.
 By contrast, in the DPRK, state actors control the process. Although Article 6
recognizes “the principle of universal, equal, and direct suffrage by secret ballot,”
in practice, state actors (1) vet candidates and allow only one name on the ballot;
(2) restrict public deliberation; and (3) permit only public balloting. Similarly, as
developed in the next cluster, the Constitution provides that the SPA shall choose
the Chair of the SAC according to the “unanimous will” of the people, but the
Constitution specifies no mechanism for determining that will.

By these conventional indicia, DPRK elections are therefore much less democratic than
ROK elections. But, again, the DPRK Constitution does not rest on an ideal of popular
democracy; instead, it rests on the ideal of democratic centralism, that state actors will
ensure the good of the people by choosing the best qualified candidates. Elections might
also serve functions other than popular control, such as educating and acculturating the
public.

The Panel considered that the underlying ethos of the DPRK Constitution was not direct
popular self-government but rather government caretaking for the people. Phrased
slightly differently, the ROK Constitution embeds the idea of responsive government
defined as a government that is responsive to the voters’ demands; by contrast, the DPRK

9
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

Constitution embeds the idea of responsive government defined as government

responsive to the people’s needs, as measured by the state actors, who are in the best
position to understand those needs.

Nevertheless, the Panel also agreed that even within the parameters of democratic
centralism, the government can act unjustly, and so the people might need some kind of
recourse. The Panel therefore considered what sort of recourse the people might have in
the DPRK Constitution other than elections. The Panel contemplated several possibilities:

 Citizens have the constitutional (or de jure) right to submit grievances and
petitions—a right which was a part of the Soviet Constitution, as well as
Confucianism and many monarchical traditions, and which the ROK Constitution
also protects;
 The weight of public opinion, all by itself, may influence what the government
does; or
 The Panel believed that there may be other de facto popular checks on government
and that the subject would merit further research.

The Panel considered that these tools might influence the conduct of the government, and
they might therefore represent formal or informal checks on state power by citizens of
the DPRK. Precisely for that reason, however, they do not fit easily alongside the
prevailing democratic centralisms of the DPRK Constitution. As a result, the Panel
expressed doubt about the effectiveness of these checks, and it concluded that the topic
would benefit from further study.

The Panel further considered that the ability of citizens to exercise any formal checks on
state power presupposes the conscious, public discussion of governmental wrongdoing
and options to address it. In order for the citizens to exercise any real influence over their
government, they must have a sense that there are alternatives to the status quo, and they
must have some understanding of those alternatives. But democratic centralism tends to
occlude that sense: the government acculturates the citizens to the prevailing ideology,
demands loyalty to it, and deliberately suppresses the consideration of alternatives. It is
therefore unclear how adding certain citizen tools such as the right to petition will affect
a system that is overwhelmingly rooted in democratic centralism.

10
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

The Legislature

Popular sovereignty typically manifests itself most centrally in the legislature, the most
democratic element of government. Indeed, the Panel concluded that both constitutions
give the legislature a salient formal role in government. Both constitutions provide that
there shall be a legislature, which shall have the power to make laws, and which shall be
elected by universal, equal, and direct suffrage by secret ballot—though, as already noted,
the nature of elections in the two countries is quite different. It should be noted that the
legislative structure is different in one respect: in the DPRK, the legislative power is
largely exercised by the Presidium, and the ROK has no analogous body. Nevertheless,
the Presidium is still a part of the SPA, and so its salience does not reduce the formal
centrality of the legislature itself.

Even though the legislature is nominally central in both countries, the actual role of the
legislature is different. Socialist constitutions typically regard the legislature and the
party as the most important institutions for popular power, and so they ascribe great,
indeed fairly unlimited, power to these institutions. The DPRK Constitution is similar to
other socialist constitutions in this regard. The Panel also noted that in the DPRK
Constitution, the legislature’s role might be considered to reflect something like
Rousseau’s concept of the general will.

At the same time, however, real power in the DPRK is concentrated primarily in the
Supreme Leader, who holds the chair of the State Affairs Committee. The SPA serves
primarily to ratify decisions already made in the executive department. As will be
discussed in the analysis of the next cluster, on the structure of the executive, the role of
the Kim family marks a significant departure from socialist orthodoxy.

In ROK as well, the executive has routinely expanded its power at the expense of the
legislature, but the legislature nonetheless still retains greater power than does the
legislature of the DPRK. Indeed, the power of the ROK legislature is notable for the means
given to it to check the executive. These checks include, among others:

 The power to begin the impeachment of the President, which the legislature has
in fact twice exercised (in 2004 and 2016), with the final decision falling to the
Constitutional Court, which has confirmed impeachment once (in 2017);

11
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

 The power to inspect and investigate state administration, as a general matter and
on a regular basis;
 The power to compel ministers to attend Parliament and answer questions; and
 The power to conduct personnel hearings for executive appointments, including
those for which the Constitution does not require legislative approval—although
this power is given only by statute and the president has often appointed persons
without the legislature’s personnel report.

The power of the legislature can, however, be fully considered only when compared to
the power of the executive, which is the subject of the next cluster.

CLUSTER THREE: EXECUTIVE STRUCTURE

The same set of themes continued in the Panel’s consideration of the structure of the
executive department in the two constitutions. In both countries, the executive is very
strong, much stronger than the text of the constitution would suggest. But in the DPRK,
that strength is central to the Constitution’s goals, and it is an essential part of its
prevailing ideology. By contrast, in the ROK, the Constitution clearly seeks to place limits
on the power of the presidency; the imperial presidency is thus a threat rather than a
promise. In this sense, the Panel concluded, the ROK Constitution is deliberately drafted
to move away from the extraordinarily strong executives of the past.

Selection of the Executive

In the ROK, the voters directly choose the president through a universal franchise, and
though the President may enjoy great power while in office, Article 70 permits him or her
only a single five-year term. By contrast, in DPRK, the legislature chooses the chief
executive (the head of the SAC) but not by an actual tabulated vote; rather, the SPA
merely recognizes “the unanimous will of the Korean people.” But that will is itself not
determined by an actual vote; rather, the succession is hereditary within the Kim family.
The DPRK Constitution does not actually dictate that the succession shall be hereditary,
but that principle is universally recognized. It is also intimated in the preamble, and it is
mandated in other foundational documents such as Ten Great Principles of the
Establishment of the Unitary Ideology System. In this respect, the DPRK Constitution
departs most markedly from orthodox Marxism, which would find the idea of inherited

12
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

power anathema, instead locating ultimate power in the workers, the party, and the
vanguard.

Indeed, the executive structure of the DPRK Constitution has been heavily revised at each
succession to conform to the new leader’s particular circumstances. Kim Il Sung held the
title of President, but, in deference to his unique role, neither of his successors has
inherited that title; indeed, the 1998 revisions to the Constitution posthumously declared
him to be the “eternal President of the Republic.” Instead, upon Kim Jong Il’s succession,
the Constitution was revised to give primacy to the chair of the National Defense
Commission, a position held by Kim Jong Il that reflected his “military first” policy. The
current Constitution instead gives primacy to the chair of the State Affairs Commission,
a position held by Kim Jong Un that reflects his policy to promote both military strength
and economic development. Again, these changes were not intended as a prospective
limit on government actors; instead, they expressed an already established
reorganization of power. And though the exact structure of the executive changed, the
principle of hereditary succession did not, and neither did the extraordinary power of the
Supreme Leader, as explained in the next section.

Executive Power

Similarly, in the ROK, the executive power is theoretically divided between the President
and the Prime Minister, even though the President is by far the more powerful of the two.
By contrast, in DPRK, the Supreme Leader holds entirely unitary authority.

Under the ROK Constitution, the ROK President shares executive power with a Prime
Minister (PM). To be sure, the President chooses the PM, whom the Constitution
describes as the President’s legislative assistant. But the PM must also secure the support
of the legislature, which might be controlled by a different party. Cohabitation is
therefore at least a possibility, though it has not so far happened. In addition, though the
legislature may not unilaterally remove the PM, it may recommend that the president do
so.

Indeed, although the President is clearly the dominant partner in the arrangement, the
Panel also noted that the ROK Constitution is a mixture of elements typical of presidential
systems, such as the president’s veto power, and also elements more typical of
parliamentary systems, such as the PM’s decree power and the power to initiate

13
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

legislation. It might, therefore, be accurate to describe the structure as a presidential

system “dressed up” as a semi-presidential system.

By contrast, in the DPRK, the chair of the SAC shares power with no one. Article 100
provides that the chair of the SAC is the “Supreme Leader,” and Article 103 provides that
he shall be the Commander-in-Chief. By convention, he is also the head of the Workers’
Party. And, although Article 106 provides that he shall be accountable to the SPA, in
practice it is understood that the SPA has no power to remove him.

In addition, as already noted in the last section, the legislature in the ROK has some
meaningful power over the executive. In the DPRK, by contrast, the legislature’s role is
to affirm the decisions of the Supreme Leader.

Finally, the two constitutions are similar in that each creates other executive bodies that
have no actual power over the chief executive: in ROK, the State Council is purely
advisory and has never been assembled; and in DPRK, the Cabinet exists solely to carry
out the will of the Supreme Leader.

Theories of Executive Power

The Panel felt that the foundational differences between the two constitutions were
perhaps at their most vivid in their differing theoretical approaches to executive power.
In ROK, the president is directly elected by the people and so is theoretically an agent of
the people. As always, however, because of agency costs, the president is likely to take
on more power than allowed in the Constitution and to pursue agendas other than those
that the people desire. Hence, the threat of the imperial presidency is constant, and part
of the solution is checks and balances, to keep the president honest.

The underlying theory of the DPRK Constitution is very different. The people have a duty
of loyalty to the regime and its ideology, which is purportedly in their best interests.
Correlatively, the executive has a duty of caretaking, to be responsive to the people’s true
needs rather than to their conscious wants, which may be mistaken.

In the DPRK, therefore, the idea of popular sovereignty means loyalty to the Supreme
Leader, who is asserted to be uniquely qualified to govern for the people’s good,
especially by asserting national sovereignty against foreign enemies. It might be possible
to conceive of this arrangement as based on an implicit contract of loyalty and protection,

14
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

much as some monarchies have had, but it is unlikely that the people have any remedy
if the executive violates its end of the deal.

For that reason, the Constitution presumes that the executive will fulfill its duty because
the people are not actually in a position to understand whether it has done so. The
Constitution will therefore work as intended only if the people and the executive truly
do trust each other. That trust, moreover, must preexist the Constitution, which does not
seek to engineer trust. In that sense, again, the Constitution is more a recognition of
existing circumstances than an attempt prospectively to control the structure of power.

CLUSTER FOUR: THE ROLE OF POLITICAL PARTIES

Finally, the Panel concluded that the same collection of ideas underlies the differing role
of political parties in the two constitutions: in the ROK, political parties help voters to
control the government; in the DPRK, the party helps the government to control the
citizens.

The ROK Constitution mandates a multiparty system, so that parties can present
competing agendas to the voters. The parties thus allow voters to band together so as to
exercise greater control over their government. To that end, the ROK Constitution
protects the right of individuals to form political parties and to associate in other ways to
advance their views and interests.

By contrast, the DPRK Constitution does not protect the right of individuals to form
parties; instead, it mandates that the government shall create conditions that will allow
the formation of parties. The Panel considered that this formulation is very different:
rather than authorizing individuals to organize to restrain their government, it merely
creates a government obligation. Again, the vector runs from the government to the
people, rather than from the people to the government.

In practice, though the DPRK does have more than one party, only the Workers’ Party of
Korea has any power. The other parties are regarded as “friend” or satellite parties, and
they do not run candidates in competition with the WPK. Indeed, the Constitution very
broadly commands that the Workers’ Party shall hold the leadership role.

The Panel therefore considered two additional questions for the DPRK Constitution, with
additional reference to the WPK charter:

15
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

 What is the purpose of the Workers’ Party?

 How much power does the Workers’ Party actually have?

As to the first, the Panel recognized that, as in the ROK, the typical purpose of parties is
to present competing alternatives to voters, but when there is only one party, that cannot
be the purpose. The Panel therefore considered that the Workers’ Party served several
different objectives:

 The WPK serves to acculturate citizens to the importance of the Kim family, which
some compared to a religion.
 The WPK further serves to educate citizens into the prevailing ideology of the state.
 The WPK may serve to provide the people with opportunities for an associational
life, especially through mass organizations, which may help to form public
opinion, which may have some influence on the government.
 The WPK may allow individuals or factions to compete within the party, including
competition for legislative seats, which may allow for a very limited set of checks
and balances.

As to the second question—the scope of the WPK’s power—the Panel concluded that it
was very difficult to gauge from the outside. As noted, the Constitution itself assigns a
leadership role to the party, but it does so only in a highly general way and in only two
places: the preamble and Article 11. The Constitution nowhere spells out the particular
powers or roles of the party, and this vagueness reflects again a general difference
between the two constitutions: the ROK Constitution is meant prospectively to restrain
power, but the DPRK Constitution is meant to memorialize a pre-existing reality, which
need not therefore be specified in detail. For the same reason, the preamble and Article
11 are clearly not intended to protect the power of the party as against other elements of
government such as the Supreme Leader, the Korean People’s Army, or the SPA
Presidium.

Nonetheless, the Panel felt that under Kim Jong Un, the party leadership may have come
to play a more important role. It remains to be seen whether party leadership might
introduce an element of checks and balances into the lived experience of the DPRK
Constitution. If so, returning to the idea of an implicit contract of popular loyalty and
executive caretaking, the party leadership might serve the role of incentivizing the

16
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

executive to hold up its end of the deal. Unlike ordinary people, the party leaders would
presumably be in a position to understand the prevailing ideology and to hold a position
on whether it was being properly served.

Finally, the Panel also observed that in addition to protecting the power of parties, both
constitutions also protect the people against malignant parties. The ROK Constitution
specifically mandates a species of militant democracy by prohibiting parties that are
dedicated to subverting the democratic order. The Panel observed that this provision was
susceptible to abuse because the government—and hence the ruling party—has the
power to initiate proceedings to ban a party. On the other hand, the danger is mitigated
by the fact that the Constitutional Court will ultimately decide whether the party is
dangerous.

The DPRK Constitution’s ban is much broader: the state is charged with defending the
people’s power and the socialist system against all subversive acts of hostile elements at
home and abroad. This provision would cover parties inimical to the constituted order,
as does the ROK Constitution.

Although both constitutions thus take steps to block subversive parties, there are also
differences in approach:

 What should count as subversive would presumably be different in the two

constitutions; and
 The ROK Constitution specifies the precise steps necessary to ban a particular
party, while the DPRK Constitution merely gives power to the state—another
illustration of the general difference that the ROK Constitution is meant to limit
state power, and the DPRK Constitution is meant to project and facilitate state
power.

CONCLUSION

This report has sought to highlight core similarities and difference between the
constitutions of the DPRK and the ROK. Examining each document through several
different lenses has provided clear illustration of each. Some of the similarities are greater
than one might initially expect, with the constitution in each place suggesting a strong
legislature at the center of government, but a strong tendency in practice towards
executive governance. The differences are often deeper than the text alone can illustrate:

17
National Committee on North Korea
 Workshop Report: Constitutional Design in North and South Korea

similar commitments to the constitutional centrality of the people and popular

sovereignty, for example, play out very differently in practice in each place when it comes
to elections, governance, and political accountability.

It is clear from this survey that it is essential to understand each constitutional system in
respect of its animating ideology and values. While the ROK Constitution adopts a model
of constitutionalism more ideologically similar to other legal systems around the world,
the distinctive values of Juche, vanguardism, and democratic centralism are the animating
ideals of the DPRK Constitution, and the document can properly be understood only in
this light.

Perhaps the most important difference is their core vision of law and the role of
constitutionalism: rule of law in the ROK and rule by law in the DPRK. The DPRK
Constitution sees law enabling and facilitating a set of beliefs and expectations
underlying the Constitution. Understanding this is crucial to grasping the relationship
between the organs of state; the nature and meaning of accountability under the
Constitution; and the role the Constitution plays in fundamentally empowering state
action rather than acting as a restraint on it. Similarly, we cannot properly understand
the constitutional role of the WPK or the Supreme Leader without this context. The ROK
Constitution, on the other hand, empowers and restrains in similar measure: it prescribes
stricter limits on powers in various ways, from limits on emergency powers to
constitutional review by the courts, and more institutional and formal methods of
accountability at all levels of government. Fundamentally, the DPRK Constitution
presumes (without trying to create) a pre-existing foundation of trust in its highest
institutions and their use of power; the ROK Constitution is built on a skepticism of such
institutions and uses of power. Read through these different lenses, similar constitutional
text is often revealed to be very different in practice.

18
National Committee on North Korea