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Third, investigating these two instances of constitution making side-by-side will be fruitful because both were done under the same foreign tutelage. It is common knowledge that the U.S. military occupation, led by General Douglas MacArthur as the Supreme Commander for the Allied Powers , played a pivotal role in the making of Japan's postwar constitution. More interesting, perhaps, are the different approaches adopted by the U.S. military authorities in the two occupied territories. Defeated Japan was ruled indirectly via the Japanese government left intact after the surrender. By contrast, United States Army Military Government in Korea took direct control of Korea that was liberated from Japan, declaring itself to be the sole lawful authority in Korea and outlawing all local political groups claiming to represent the Korean people. Ironically, though, the Japanese constitution was largely a product of direct intervention by SCAP, whereas the Korean constitution was written by Koreans themselves with less coercive involvement on the part of USAMGIK.
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The term inmin—pronounced jinmin in Japanese—was the word favored by communists. One conservative member of the National Assembly made a rather emotional appeal in favor of using kukmin by stating that he was sick and tired of hearing about the loathsome “people's committees” set up in the north. This ensured that the scope of the “Japanese people,” in whose name the new Constitution would go into effect the very next day , would be identical with those “Japanese nationals” listed under the registry created by the 1871 Family Registration Law. By engaging in a selective appropriation of useable pasts, it severed living continuities while inventing imagined traditions. This was unavoidable, in a sense, because the Founding Constitution of 1948 was given a dual mandate of restoration of the past and establishment of the future . In fact, lustration was a central issue even before the CNA was convoked in May 1948.
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41 The motive behind MacArthur's initiative had to do with SCAP's rivalry with the Far Eastern Commission , nominally SCAP's supervisory institution and newly created under the auspices of the State Department. The highest policy-making authority representing all former Allied belligerents in the Pacific theater , FEC was more inclined to radical reform measures than SCAP was willing to accept. MacArthur was already determined to protect the emperor and, in order to preempt FEC initiatives, decided to erect a new constitutional edifice on the platform of peace. 33 This implies that the unity presupposed by a constitutional order is never static. It is a product of a ceaseless dialogue with various and varying preconstitutional identities.
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19 The making of a constitution has the effect of calling a “people” into existence, whose political and legal identity is grounded in that very constitution. Thus, the relationship between the people and the constitution is less one of creator and his handiwork than that of reflexivity in which they engender one another. It may be that, as a historical matter, a certain preconstitutional community with shared ethnic, cultural, religious, and/or linguistic heritages can more easily agree to strive for political independence. Still, this community is not yet a “people” in the sense of being a political demos defined by mutual freedom and equality.
Past does not, and, some might say, should not go away even after its revolutionary destruction. This may be because the postcolonial legislators knew no better, due to their colonial training, or because those templates comported well with the socioeconomic infrastructures put in place during the colonial era. The first dimension has to do with the questions “What is the larger context in which the people come into being? ” Often overlooked in conventional theorizing about constitution making is the positive and negative influence from the outside, which often leaves an enduring mark on the new constitutional order and its identity. Given the presumption that constitution making is, or should be, about giving voice to the people themselves, any input from the outside is viewed, naturally, with suspicion.
At a minimum, it calls for a reconsideration of any view that pits the “people” against globalization in purely oppositional terms. It is hoped that this essay will have provided the needed stimulus for further research in that direction. 144 The purpose of this ordinance was to “determine, effective until the time of reunification of South and North Koreas, the family registration status” of those registered at an address in North Korea but were currently residing in the south. Given the increasing influx of North Korean refugees fleeing the Soviet occupation, this was a necessary measure to control them as well as to give them voting rights for the upcoming election. In particular, the ordinance's main goal was to permit the North Korean refugees to move their family registry to the address of their current residence in South Korea. This meant that, in order to participate in the election to form the Constituent National Assembly of the Republic of Korea, one needed to be registered at an address in the south.
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