Historic Events Belong to the Realm of History

- 2003.8.14. Bill No. 162541, introduced by member of the National Assembly Huiseon Kim:

Special Bill on Investigating the Truth of Pro-Japanese Anti-National Activities During the Japanese Colonial Period -

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The “Special Bill on Investigating the Truth of Pro-Japanese Anti-National Activities During the Japanese Colonial Period,” introduced in August 2003 by 155 members of the National Assembly, has continually stirred controversy. Those who support the bill believe it addressed something both natural and urgent, while those who oppose it regard it as burdened with a number of serious problems. Pro-Japanese collaboration is an unbearably painful historical episode for us, and naturally, it is not an issue we can confront calmly. In that sense, such controversy is unavoidable. Even so, we must examine the matter coolly and work through this difficult problem.

What we must clearly recognize in examining this bill is that the matters it defines are, in essence, judicial in character—trials of crimes. This is plainly revealed in the passage under “Reason for Proposal,” which states that the bill is intended “to establish a special law in order to investigate, at the government level, the truth about pro-Japanese anti-national activities, and, after investigating the truth of such anti-national acts, to preserve the results as historical materials, thereby correcting distorted history and restoring the legitimacy of the nation, and using this as a lesson for future generations.” Since nearly all those who engaged in pro-Japanese activities are already dead, it is impossible to impose physical or financial punishment on them. But once a person is determined under this bill to be an “anti-national actor,” he becomes an object lesson for “future generations” and bears a disgrace from which he can never escape. His descendants, too, would naturally suffer greatly. Accordingly, although the bill nominally aims to “investigate the truth of anti-national activities,” in substance it amounts to trying such “anti-national activities” in absentia.

The essential problem with this bill lies in the fact that, while it is substantively a trial, it presents itself only nominally as a measure for “investigating the truth.” In a formal criminal trial, mechanisms are put in place to protect to the fullest extent the rights of the accused. Above all, the defendant is able to defend himself, either personally or through counsel. But because this bill is not explicitly framed as a bill concerning trials, it contains no consideration at all for such procedural justice. It includes no concern about, or provisions to reduce, the possibility that innocent people may be harassed and made to bear severe disgrace.

Whatever one’s judgment about the validity of the bill itself, it is clear that the bill is far too negligent with respect to procedural justice and therefore requires supplementary measures to secure at least a minimum level of it. If, for example, for persons deemed under this bill to have committed “anti-national activities” and thus made subject to “truth investigations,” the government were to use its own funds to find people to defend them on their behalf—scholars well versed in modern Korean history, for instance—the seriousness of the problem would be considerably alleviated. Here we must recall that procedural justice is of decisive importance in resolving disputes. Borrowing Martin P. Golding’s expression, “adherence to standards of fairness promotes the settlement of disputes” [Philosophy of Law]. In dealing with the pro-Japanese issue, which has generated much controversy and constant objections concerning fairness and validity, securing procedural justice is bound to be especially important for reducing social conflict and obtaining citizens’ consent.

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Next, we must note that this bill is, in substance, very similar to the “Act on Punishing Anti-National Acts” enacted in September 1948. Although few have mentioned this point, it is of fundamental importance.

First, the act and this bill have the same purpose. Both present themselves as contributing to social justice by punishing “anti-national activities.” The only difference is that, because physical punishment is now impossible, this bill punishes the reputation of those concerned.

Next, the targets are the same. This bill defines 25 kinds of conduct as “pro-Japanese anti-national activities.” Most of them are acts defined as “crimes” under the 1948 act.

Item 1, “acts of suppressing, or ordering or encouraging the suppression of, units fighting Japanese imperialism in order to defend our country’s sovereignty”; item 2, “acts of obstructing the activities of organizations or individuals struggling to restore our country’s sovereignty”; item 3, “acts of arresting, killing, abusing, or executing independence activists and their families, or directing such acts”; and item 4, “acts of serving as an executive or employee in an organization formed for the purpose of obstructing the independence movement,” elaborate on Article 3 of the act, “those who maliciously killed or persecuted independence activists or their families under Japanese rule, or directed such acts,” and Article 4, item 5, “those who organized a group for the purpose of obstructing independence or served as senior executives of such a group.”

Item 5, “acts of obstructing the independence movement through espionage,” is the same as Article 4, item 5 of the act, “those who interfered with the independence movement through espionage.”

Item 6, “acts of signing the documents of the Eulsa Treaty, the Japan-Korea Annexation Treaty, or other treaties that infringed upon Korea’s sovereignty,” is the same as Article 1 of the act, “those who actively cooperated in the annexation of Korea in collusion with the Japanese government, and those who signed or conspired regarding treaties or documents infringing upon Korea’s sovereignty.”

Item 7, “acts of receiving or inheriting the throne or a title as a reward for the annexation of Korea”; item 21, “acts of receiving rewards or decorations from the Japanese government, the Japanese military, or the Government-General of Korea for taking the lead in suppressing our people”; item 8, “acts of serving as a member of the House of Peers or House of Representatives of the Imperial Diet of Japan”; and item 9, “acts of serving as vice chair, adviser, or councilor of the Central Council of the Government-General of Korea,” are identical in content to Article 2 of the act, “those who received titles from the Japanese government or became members of the Imperial Diet of Japan,” and Article 4, item 1, “those who inherited titles,” and item 2, “those who became vice chair, adviser, or councilor of the Central Council.” It is noteworthy, however, that item 7 adds “the throne,” thereby assigning responsibility to the royal family of the Joseon dynasty.

Item 10, “acts of cooperating in wars of aggression as an officer or noncommissioned officer in the military of Japanese imperialism,” and item 20, “acts of taking the lead in suppressing our people as a police official, military police officer, or military police assistant,” elaborate on Article 4, item 6 of the act, “those in military or police official positions who harmed the nation through especially vicious acts.”

Item 11, “acts of encouraging or coercing student soldiers, volunteer soldiers, conscription, labor conscription, or compulsory requisition”; item 12, “acts of providing women for the purpose of comforting the Japanese military”; item 13, “acts of advocating or encouraging the adoption of Japanese-style names”; item 14, “acts of serving on construction committees for building Shinto shrines”; item 15, “acts of praising the rule of Japanese imperialism through the press, the arts, schools, religion, literature, or other cultural institutions or organizations, taking the lead in Japan-Korea assimilation and imperial subjectification movements, or cooperating in Japan’s wars of aggression”; item 18, “acts of taking the lead in suppressing our people as judges, prosecutors, clerks, bailiffs, or prison officials within the judiciary”; and item 22, “acts of cooperating with Japanese imperialism as an executive or employee of various affiliated organizations of the Japanese imperialist governing apparatus,” elaborate on Article 4, item 9 of the act, “those who became government officials and conspicuously committed vicious offenses against the nation by abusing their positions”; item 10, “those who, as senior executives at the headquarters of organizations established for promoting Japanese national policy, engaged in vicious and leading conduct”; and item 11, “those who, in religion, society, culture, economy, and other sectors, betrayed the national spirit and convictions and led cooperation with Japanese aggression and its policies through vicious anti-national speech, writings, and other means.” It is noteworthy that whereas the act broadly defined such persons as “those who became government officials,” this bill separately specifies members of the judiciary.

Item 16, “acts of producing military supplies and providing resources to aid the war efforts of Japanese imperialism, or donating large sums of money, aircraft, and the like for that purpose,” adds donation-related acts to Article 4, item 7 of the act, “those who managed military factories producing aircraft, weapons, ammunition, and the like.”

Item 17, “acts of cooperating with Japanese imperialism as a member of provincial or municipal advisory or deliberative bodies, township or township-level councils, or school councils,” expands the scope of Article 4, item 8 of the act, “those who served as members of provincial or municipal advisory or deliberative bodies and, by currying favor with Japanese authority, conspicuously committed anti-national offenses,” to lower-level institutions.

Item 19, “acts of taking the lead in suppressing our people as officials of the rank of juimgwan or higher, military or police officials of the rank of panimgwan or higher, or high police detectives,” is similar in character and content to Article 4, item 3 of the act, “those who served as officials of the rank of chikimgwan or higher,” and Article 5, “those who under Japanese rule held official ranks of grade 3 or higher, received decorations of the 5th class or higher, or served as government officials, military police, military police assistants, or high police.”

Therefore, among the 25 acts defined as “pro-Japanese anti-national activities,” the only newly added ones are item 23, “acts of plundering our people’s property as an executive or employee of banks, companies, associations, forests, fisheries, factories, mines, and the like”; item 24, “acts of distorting or erasing our people’s history while belonging to the Joseon History Compilation Committee or similar bodies”; and item 25, “acts of inflicting economic suffering on the people, backed by the power of Japanese imperialism, in the land survey project and various other colonial rule projects.” Even if adding these three were justified, it would be hard to say that they occupy a central place among “pro-Japanese anti-national activities.” Therefore, it may be said that this bill is substantially identical in content to the act.

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As seen above, because this bill is substantially the same in purpose and content as the act, it inherits the same problems the act carried.

First, the act was retroactive legislation. Thus, acts that had clearly been legal at the time they were committed were defined as crimes. In the “truth investigations” conducted under this bill as well, there is a strong possibility that such legal acts would retroactively become crimes.

Next, instead of the three-instance trial system guaranteed by the Constitution, it adopted a single-trial system. This was a grave constitutional violation. As noted above, this neglect of procedural justice continues in this bill as well, so that if someone is determined under this bill to have committed “pro-Japanese anti-national activities,” there is no path for that person to receive a retrial.

Third, the crimes defined in the act do not have clearly identifiable victims. The crimes defined in the act are, in essence, crimes against the nation as victim. The very name includes the expression “anti-national acts,” and throughout appear phrases such as “harming the nation.” But the nation is a concept without a clearly tangible substance. In general, crimes are understood as being committed against concrete individuals. If an abstract collective such as the nation is treated as the victim, a number of difficult problems arise. This bill cannot avoid facing the same problems.

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The statute of limitations for prosecutions under the act expired on August 31, 1949. On September 22, 1949, a bill was passed abolishing the Special Committee for the Investigation of Anti-National Activities, which had enforced the act, and the Supreme Court and Supreme Prosecutors’ Office took over the work the committee had been carrying out and completed the trials by the end of March 1950. By enacting and enforcing the act, which had the character of a lustration law intended to cleanse the colonial experience, the Republic of Korea officially addressed the pro-Japanese issue, at least once.

Now, to create a new law with the same purpose and substantially the same content as the act is to deny the validity of the act and refuse to abide by the judgments rendered by the judiciary of the Republic of Korea under that law. Whether or not the sponsors of this bill intended it, that is what it amounts to in practice. Whatever grounds the proponents of this bill may put forward, it is difficult to justify such an act.

It is true that the activities of the Special Committee for the Investigation of Anti-National Activities fell short of initial expectations. Since the newly established Republic of Korea was not in a position to function like a normal state, the conditions of the time constrained the committee’s activities in various ways. However, its performance was not so poor as to warrant the conclusion that the purpose of the act as a lustration law had been completely frustrated, and the work undertaken by the committee was lawfully concluded by the courts of the Republic of Korea.

Nevertheless, citing the committee’s inadequate performance, a current of thought that altogether denies the committee’s achievements and the trial outcomes under the act has long dominated our society. Indeed, it has been taken for granted that even those acquitted at trial should continue to be regarded as “pro-Japanese collaborators” or “anti-national actors.” As a result, people once indicted by the committee were branded as “pro-Japanese collaborators” or “anti-national actors” regardless of the outcome of their trials under the act.

This bill, too, was drafted from the standpoint of denying the committee’s activities under the act and the trials conducted by the judiciary. If the National Assembly that once enacted the act were now to enact this bill as law, it would amount to the National Assembly denying its own legitimacy.

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The substance of this bill is to create a fairly large organization and have it carry out various tasks over a considerable period of time. That would naturally require substantial resources. Even just the newly added category of “anti-national activities” in this bill—“acts of plundering our people’s property as an executive or employee of banks, companies, associations, forests, fisheries, factories, mines, and the like”—makes it hard even to imagine how vast the undertaking would be and how many resources it would require.

By contrast, the social benefits that would result from embarking on such a large undertaking are unclear. No one has yet clearly explained through what process uncovering “anti-national activities” would actually benefit our society. Even if such activities were in fact to “correct distorted history and restore the legitimacy of the nation,” and even if the benefits thereby produced exceeded the costs, the question would still remain whether it is desirable to invest substantial resources in that task now.

Pro-Japanese activities are now historical events. Most of them occurred more than half a century ago. Accordingly, the pro-Japanese issue belongs essentially to the domain of historiography, and it is desirable that discussion of it be led by historians well grounded in scientific methodology. It is not desirable for arbitrary private groups driven by ideology or government bodies sensitive to political interests to take the lead in this matter.

Bok Geoil (novelist)

Wiki:

https://www.cfe.org/w/bbsDetail.php?idx=72

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Original title: 역사적 사건은 역사학의 영역이다

Author: Geoil Bok

Date: 2004-02-09

Source: https://www.cfe.org/bbs/bbsDetail.php?cid=bill&pn=4&idx=25829