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Executive Transition: The Death of Kim Jong-il

Word came from North Korea by state newscast that their leader for decades, Kim Jong-il had died on December 17, 2011. The United States has been preparing for the death of Kim Jong-il at least since his 2008 stroke. The Washington Post reported that one U.S. official, who spoke on the condition of anonymity said, “This brings extraordinary change and uncertainty to a country that has seen little change in decades . . . South Korea’s concern is warranted, frankly, because an insecure North Korea could well be an even more dangerous North Korea.”

North Korea test-fired a short-range missile before announcing Kim Jong-il’s death, which in itself is not unusual, but is likely a signal that nothing will change in its foreign policy in the near future. Reactions ranged from China applauding Kim Jong-il’s leadership to concern and optimism in Japan seeing the death as a potential for instability or a positive step in moving towards peace in the region. Japan’s Chief Cabinet Secretary Osamu Fujimura said: “We need to watch risks related to the succession.”

Kim Jong Un, Kim Jong-il’s youngest son, is assumed to have taken over as leader of North Korea. The transition comes as the Obama administration was contemplating a new round of nuclear disarmament talks.

Changes in the executive branch vary widely between democratic governments and those run by dictators or a few ruling elite. Yet, it is not completely clear even in democratic nations, like the United States, how transitions legally occur. See generally Jack M. Beermann and William P. Marshall, The Constitutional Law of Presidential Transitions, 84 NCLR 1553 (2006). Article II and the Twelve Amendment of the U.S. Constitution set forth the Presidential term at four years and how Presidents are to be elected. The Twenty-Fourth Amendment establishes how transitions occur if the President dies or other circumstances before the four-year term. “Nonetheless, presidential transition periods are obviously anticipated by the constitutional structure. The constitutional system for electing and installing the President ensures that the President will serve for a substantial period of time either knowing or facing a strong possibility that his period in office as President will be ending at a specific time in the near future.” Id. at 1257. The major concern in democratic nations is if the change of power during between the time of election and the swearing in of the executive will happen too slowly. Id. at 1260-67.

The process in North Korea is clearly different from that of the United States and democratic nations. There is tepid concern that after an adequate mourning period, the military leadership in North Korea may or may not accept Kim Jong-Un as the new leader. There is thus not only ambiguities of how the new leader will react, but if Kim Jon-Un will even be the new leader. There are three main bureaucracies in North Korea that will vie for power: 1) the Party (WPK), the military (KPA), and the Cabinet. The Party has slowly lost power under Kim Jong-il, while the military has increased its influence. Kim Jong-Un, dubbed the “Young General“, may see his influence increase if he decides to side more with the military.

The North Korean Constitution was changed in April 2009 and appears to give more authority to the leader of the country. The changes also potentially reflect an emphasis on the military. This was the first time that the Constitution was published outside of North Korea, so it is unclear what this means about the role of the executive.

Article 100 of the Constitution now reads, “The chairman of the National Defense Commission (NDC) is the supreme leader of the Democratic People’s Republic of Korea (DPRK).” Kim Jong-il held the position of supreme leader, so whoever assumes this authority is assumed to have the greatest authority in North Korea. Jonathan Pollock of the Brookings Institution stated, “Though Kim Jong-il appears to have secured nominal fealty of his inner circle to his son’s elevation to top leadership, Kim Jong-un will be wholly dependent on his father’s close aides (including Kim Jong-il’s sister and brother-in-law) and the party, military, and public security organs that underlie the state’s extraordinary coercive powers.”

Compared to democratic nations, North Korea does not have a clear legal framework for transitions of the Executive. This should be concerning, not only for the lack of legitimacy of those in power, but also because of North Korea has a developing nuclear program and one of largest standing armies and submarine forces in the world.

A version of the North Korean Constitution can be found here: http://www.novexcn.com/dprk_constitution_98.html.

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