President's Proposition for National Confidence Referendum1)Case

[15-2(B) KCCR 350, 2003Hun-Ma694, etc.,(consolidated),

November 27, 2003]

Contents of the Decision

Whether the President's public statement during the speech on stateaffairs delivered at the National Assembly plenary session expressinghis intention to hold a national confidence referendum not associatedwith any policy constitutes a subject matter for a constitutional com-

plaint (negative).

Summary of the Decision

1. Article 68(1) of the Constitutional Court Act provides that any person whose basic rights guaranteed by the Constitution have been infringed due to an "exercise or non-exercise of governmental power" may request an adjudication on constitutional complaint fromthe Constitutional Court. Therefore, only an "exercise or non-exerciseof governmental power" mayconstitute a subject matter of a consti-

tutional complaint. Considering the totality of the content of thestatement of the President, who is the respondent in this case, and thevarious factors prior and subsequent to such statement, the actualmeaning of the respondent's statement was merely to express hisdesign concerning the manner and the time of the intended confidencereferendum and, as such, it was merely a political act of preparationor an expression of a political plan in order to initiate a legalprocess, as it meant that the respondent, should the political circles propose any method out of consensus, would thereunder implement a national referendum.

2.Any legal process for a national referendum begins only whenthere is a public notice of a national referendum with a specific matter that is the subject matter of the referendum. Therefore, the public power is exercised with any legal effect only when there is an act that can be duly deemed as a legal initiation of the process of referendum such as a public notice of referendum. Any political suggestion or internal planning and review of the implementation of a referendum before a legal action is a mere act of preparation and is subject to constant changes or abrogation. The statement of the respondent at issue in this case is not, in and by itself, a decision or measure taken with any legally binding effect concerning the implementation of a referendum and has not influenced the legal status of citizens.

3. Then, even though therespondent made a statement as the Pre-

sident during the speech on state affairs at the National Assembly plenary session expressinghis intention to implement a national con-

fidence referendum, as such statement was not an act with anylegal effect such as a public notice of referendum but was merely an expression of political proposition, such act cannot constitute an"exercise of governmental power" that may duly be a subject matterof a constitutional complaint. Therefore, the constitutional complaintof the complainants in this case seeking a revocation of the statementor declaratory relief holding the statementunconstitutional is unjus-

ticiable.

Dissenting Opinion of Justices Kim Young-il,

Kwon Seong, Kim Kyung-il, and Song In-jun

1. The act of the respondent constitutes an "exercise of govern-

mental power" that may be the subject matter of a constitutional complaint.

A. As it is a matter subject to the respondent's sole discretion to determine to implement a national referendum, the statement of the respondent during the speech on state affairs at the National Assembly plenary session publicly expressing his intention therefor was beyond a simple preparatory act, an expression of opinion, or a political proposition. Despite such indirect expressions as "should there be a political agreement," the statement of the respondent,considered in its general context, manifestly indicated the respondent'sdetermination to implement a national confidence referendum as the requirements for a nationalreferendum under Article 72 of the Con-

stitution, if broadly construed, might permit a referendum for a con-

fidence vote. Therefore, the public statement of the respondent constituted an act of publicly expressing a manifest determination toimplement a national referendum under the authority of the President.

B. The public statement of the respondent constitutes an initial stage of the complex and inclusive process of the implementation ofa national referendum consisting of a series of constituting elements.As such, to the extent of its seriousness, the statement of the respon-

dent constituted an exercise of public power that may be the subject matter of a constitutional complaint, without a public notice of the referendum having not yet been actually made.

2. The act of the respondent rendering the matter of confidencea subject matter of a national referendum is unconstitutional, and thebasic rights of the citizens such as the right to political participationare thereby infringed.

A. The Constitution of the Republic of Korea has, in principle,adopted representative democracy where the President and the membersof the National Assembly, who are directly elected by the citizens,determine the state affairs on behalf of the citizens, yet, as an excep-

tion, the Constitution has added the element of direct democracy by subjecting the 'important policies relating to national destiny' andthe 'revision of the Constitution' to a national referendum underArticles 72 and 130(2) of the Constitution, respectively.

B.Article 72 of the Constitution provides that the "President maysubmit important policies concerningdiplomacy, national defense, uni-

fication and other matters relating to national destiny to a national referendum if the president deems it necessary," thereby endowingthe respondent with the authority to submit certain matters to anational referendum. At the same time, the same provision limits the subject matter of a national referendum to 'important policies concerning diplomacy, national defense, unification and other matters relating to national destiny.' The 'important policies' here should be interpreted to mean a 'specific and identifiable policy.'

C. In light of such constitutional provisions as Article 70 that absolutely guarantees the term of office of the President and Article68(2) that limits the vacancy of the presidential office to the enumer-

ated grounds, the confidence held by the citizens toward the perfor-

mance of the President does not constitute an 'important policy' within the meaning of Article 72 of the Constitution.

D. There have been ample examples in history of various stateswhere a holder of the state authoritysubmitted the question of confi-

dence to a national referendum and then made use of the resultthereof to fortify his or her political position. From such lessons, our Constitution expressly limits the subject matter of the nationalreferendum to 'important policies' under Article 72, thereby declaringthat a national referendum should not be abused to turn to one that has hindered the development of democracy as in history.

E. Then, the respondent's attempt to reconfirm the confidence ofthe citizens already indicated in the past presidential election by wayof a national referendum is an unconstitutional exercise of the nationalreferendum mechanism provided under Article 72 of the Constitution in a way that is not permitted by the Constitution. Such act of the respondent prohibits the citizens from legitimately participating inthe process of the exercise of the state power by autonomous deci-

sionmaking upon specific state affairs through a national referendum, thereby infringing upon the right to political participation or national referendum and the freedom not to be forced to express political opinions held by the complainants as the citizens.

---------------------------------

Parties

Complainants

1. Lee, Gyung-shik (2003Hun-Ma694)

Counsel of record: Lee, Dong-hyung, appearing as state-appointed counsel

2. Lee, Sang-man (2003Hun-Ma700)

Counsel of record: Lee, Min-ho and 1 other

3. Lee, Man-seop (2003Hun-Ma742)

Counsel of record: Dong-Ho Joint Law Services;

Counsel incharge: Lee, Jin-woo

Respondent:

the President of the Republic of Korea

Holding

The constitutional complaints filed by the complainants are dis-

missed in the entirety.

Reasoning

1.Overview of the Case and the Subject Matter of Review

A. Overview of the Case

The respondent, during a speech on state affairs delivered at the 243rd plenary session of the National Assembly on October 13, 2003, stated that he intended to implement a national referendum onor around December 15, 2003, asking for the confidence of the citizenstoward the President.

The complainants thereupon filed a constitutional complaint seek-

ing declaratory relief holding the above act of the respondentuncon-

stitutional on October 15, 2003 (2003Hun-Ma694), October 17, 2003

(2003Hun-Ma700) and October 28, 2003 (2003Hun-Ma742),respectively,

on the ground that animplementationof a national confidenceref-

erendum not associated with any important policy was in violation of Article 72 of the Constitution and infringed upon their right topursue happiness, freedom of conscience, right to vote, property right,

and certain other rights.

B. Subject Matter of Review

The subject matter of adjudication in this case is whether or notthe public statement made by the respondent during the 243rd plenarysession of the National Assembly on October 13, 2003 expressing hisintention to implement a national referendum seeking solely for the confidence of the citizens in him and associated with no policy has violated the basic rightsof the complainants guaranteed by the Con-

stitution.

2.Grounds for Constitutional Complaints and the Opinions

of the Related Parties

A. Grounds for Constitutional Complaints

(1)Under Article 72 of the Constitution, the President may submitthose important policies concerningdiplomacy, national defense, unifi-

cation and other matters relating to national destiny to a nationalreferendum, but it is not permitted to submit to a national referendumthe confidence of the citizens in the President as it is not a policy matter.

(2)The respondent notwithstanding publicly stated that he wouldseek a national referendum not associated with any policies in violationof the Constitution, thereby infringing upon the right to pursue happi-

ness, right to vote, suffrage, freedom of conscience, labor right, and the human dignity and value of the complainants.

B. Answer of the Respondent

(1) The constitutional complaint in this case is unjusticiable as the President merely expressed his intention to seek the confidence held by the public in him and his opinion that a national referendum would be a desirable method to dothis, as a national confidence ref-

erendum has not been determined to beimplemented since the Presi-

dent has yet to take any measure for the implementation thereof suchas the public announcement of the date therefor, and as there has beenno exercise of public power itselfbecause there exists a mere possi-

bility of the implementation of a national confidence referendum.

(2) The constitutional complaint in this case is unjusticiable asthere is no current infringement upon the basic rights of the complain-

ants because there has been no determination to implement a nationalreferendum to ask for the confidence in the President and it is also uncertain whether such referendum will be held in the future.

(3)A national referendum seeking the confidence of the public inthe President is not

unconstitutional as the confidence of the public in the President constitutes an important policy concerning national destiny within the meaning of Article 72 of the Constitution.

C. Opinion of the Minister of Justice

It is generally the same as the opinion of the respondent.

3. Review

A. Article 68(1) of the Constitutional Court Act provides that any person whose basic rights guaranteed by the Constitution have been infringed due to an "exercise or non-exercise of governmental power" may request an adjudication on constitutional complaint by the Constitutional Court. It, however, does not specifically definethe meaning of the "exercise or non-exercise of governmental power." Therefore, whether an act constitutes the "exercise of governmentalpower" should be determined on a case-by-case basis upon consideringthe totality of such matters as what effect the act at issue has uponthe legal status of the citizens, whether the act assumes a regulatoryor formative function or is a mere notice of fact or expression of opinions, whether the act has an effect beyond the holder of the public power or is merely an affair internal to the holder of the public power, and whether the act is an official determination or isa mere preparatory conductor plan (See4 KCCR 659, 666, 92Hun-

Ma68, etc., October 1, 1992; 9-2 KCCR 131, 141, 97Hun-Ma70, July 16, 1997).

Whether the act of the respondent at issue in this case constitutesthe "exercise of governmental power" that may be the subject matterof the adjudication upon constitutional complaint should also be deter-

mined by considering altogether such various factors as indicated in the above paragraph.

B. The respondent stated at a press conference on October 10,2003 that he would "seek confidence of the public," and, subsequently, during the presidential speech on state affairs at the 243rd plenarysession of the National Assemblyon October 13, 2003, made a state-

ment as follows:

"... I announced last week that I would subject myself to the approval of the public by way of seeking public confidence. ... I now express my opinion upon the manner and the time of the confi-

dence vote in order to avoid unnecessary debates and uncertainty. Although it is not a matter that I can determine, I believe that anational referendum is a correct way. Although there are some legaldebates, I think we can implement a national referendum under the current law should there be a political agreement, by more broadly interpreting the matters concerning national destiny. Since both the Grand National Party and the New Millennium Democratic Party requested a mid-term approval or confidence in the past and again remarked that I should be immediately subject to a confidence vote upon my announcement of the intended confidence vote, I think we can reach an agreement with ease. Although there are discussions to associate the confidence vote with a specific policy, I think it will be better not to do that. I think it will be better to seek the confidence or nonexistence thereof, as is, without associating this matter with any of the policies. Should there be a request within the political circle or from the public for a national referendum for aspecific policy, such national referendum may be held simultaneously, but I believe that it is necessary to seek the confidence by itselfthrough a national referendum. In terms of the time for such nation-

al confidence referendum, December 15th or sometime around that date will be desirable. ... " (Seethe minute of the 243rd plenary session of the National Assembly.)

There have continuously been debates surrounding the respon-

dent's speech at the National Assembly between the proponents and the opponents of the national confidence referendum and upon itsconstitutionality. However, the respondent has taken no specific sub-

sequent measure to date for theimplementationof the national con-

fidence referendum following the above speech.

C. In light of the totality of the content of the respondent's speech and various factors prior and subsequent to such speech, the actual meaning of the respondent's statement was merely to express his ideas concerning the manner and the time of seeking confidence.As the respondent stated through the speech that, should the politicalcirclepresent an agreed upon method, he would thereunder imple-

ment anational referendum, such statement was merely a political act ofpreparation or an expression of political ideas or plans, for theinitiationof a legal process. Such part of the statement as "although

it is not a matter that I can determine" or "although there are some legal debates, ... should there be a political agreement" clearly indicates that the statement of the respondent was merely to appealto and urge the political circle for a consensus in order to implement

the ideas and intentions of the President for a national referendum to seek the confidence.

No determinate expectation of a definitive implementation of anationalconfidence referendum can be drawn out of the above state-

ment of the respondent by itself. There are ample possibilities for changes in matters subject to a consensus within the political circle or failure to reach any such consensus. Furthermore, should therebe no consensus reached within the political circle notwithstanding thedesire of the respondent, it is unpredictable whether the respondent would still proceed to implement a national referendum or not.

A process of national referendum may be legally initiated only when the President publicly announces the national referendum byidentifying a specific subject matter. Under the current National Ref-

erendum Act, a national referendum is to proceed in the order of thepublic announcement of the proposal of a national referendum (Article49), the notice upon the proposal of national referendum (Article 22), the campaign on national referendum (Article 26), the preparation of poll books (Article 14(1)), voting (Article 50), ballot counting and final decision (Chapters VIII and IX), the publication of the result and the notification thereof to the President and the Speaker of theNational Assembly by the National Election Commission (Article 89), and the promulgation of the final decision by the president (Article 91). Therefore, either under the current National Referendum Act orunder any statute that may separately be enacted or revised concerningthe national referendum, public power is exercised with legal effect only upon an act that may be deemed to legally initiate the nationalreferendum process such as a public announcement. A political proposalor an advance review upon an internal plan for the implementation ofa national referendum prior to any such legal act is merely an act of preparation for a matter that has yet to be officially determined, and the plan therefor or the content thereof may always be subject to a change or abrogation. The act of the respondent that is the subject matter in this case is one of such acts. As such, thestatement of the respondent, by and in itself, without further, may notbe deemed as a legally binding decision or measure taken concerning the implementation of a national referendum, nor does such statementaffect the legal status of the citizens.

Then, even though the respondent expressed his intention as thePresident to implement a national referendum to seek the confidence inhim during a speech on state affairs delivered at the National Assemblyplenary session, as long as such act was a

mere expression of a political proposal and not an act with any legal effect such as public announcement of a national referendum, such statement does not constitute an "exercise of governmental power" that may duly be a subject matter of the adjudication upon constitutional complaint.

D. To conclude, each of the constitutional complaints filed by the complainants seeking revocation or declaratory relief holding the act of the respondent unconstitutional is unjusticiable, as the act ofthe respondent does not constitute an exercise of governmental powerthat may be the subject matter of the adjudication upon constitutionalcomplaint.

4. Conclusion

The constitutional complaints filed by the complainants aredismissed as inappropriate and unlawful, and it is so ordered. Thereis a dissenting opinion of Justices Kim Young-il, Kwon Seong, Kim Kyung-il, and Song In-jun as stated in Paragraph 5 below.

5.Dissenting Opinion of Justices Kim Young-il, Kwon

Seong, Kim Kyung-il, and Song In-jun

We respectfully disagree.We are of the position that the consti-

tutional complaints in this case should not be dismissed but should instead be determined on the merit; we are further of the position that the act of the respondent in this case is unconstitutional as the act of the respondent publicly expressing, during his speech on state affairs delivered at the243rd plenary session of the National Assem-

bly on October 13, 2003, his intention toimplement a national refer-

endum inquiring solely into the confidence of the public in the res-

pondent without associating the national referendum with any of the policies constitutes an "exercise of governmental power" as a publicannouncement of a plan for theimplementation of the national con-

fidence referendum, thereby infringing upon the basic rights of the citizens guaranteed by the Constitution. The grounds are explained in the following paragraphs.

A.Legal Prerequisites of the Constitutional Complaints

(1)The act of the respondent constitutes the "exercise of govern-

mental power" that may duly be a subject matter of the adjudication upon constitutional complaint.

(A) As the majority indicates, the respondent has the authority to determine, at his sole discretion, whether or not to implement a national referendum. The respondent may initiate a process for thenational referendum by publicly announcing the implementation thereofwithout necessarily consulting other state institutions such as theNational Assembly. A public announcement by the respondent beforethe entire public through the speech on state affairs at the NationalAssembly of a plan for the national referendum, which the respondentcould implement upon his own discretionary decision therefor, was beyond the degree of a mere preparatory act, an expression of the opinion, or a political suggestion.

To begin with, as the respondent publicly stated that he intendedto implement a national confidence referendum referring to a specific manner and time thereof at such an important opportunity of thepresidential speech on state affairs intended for

explicating the direc-

tions and the budgets of the nation at none other than the plenary session of the National Assembly, it is deemed that the respondentunequivocally expressed his intention to implement such a plan shouldthere be no special changes in circumstance.

(B)Notwithstanding such an indirect expression as "should therebe a political agreement," the general context of the respondent's statement was that a broad interpretation of the prerequisites of the national referendum of Article 72 of the Constitution, although thepermissibility of a national referendum for confidence vote being underdebates, allowed a national confidence referendum, therefore the re-

spondent was determined to implement a national referendum forconfidence vote. The respondent, following the speech on state affairs, has in fact expressed a strong intention on various occasions to im-

plement a national referendum.

The respondent, then, is deemed to have publicly and seriouslyexpressed his intention to implement a national referendum as a meansto confirm the public confidence in him. The referendum to seek confidence of the public in the respondent is thus of the nature that it may be implemented without political consensus or agreement of the National Assembly.

There may well be a position, such as the majority opinion in thiscase, that underscores and provides a greater meaning to the opacityand the uncertainty of the permissibility of a national referendum forconfidence vote at the current stage. However, the Constitutional Court is obligated to adjudicate this matter by judging the legal meaningof the act of the respondentpublicly expressing such a sig-

nificant official matter as the plan to implement a national confidencereferendum at the plenary session of the National Assembly, on the premise that the act was a serious, prudent, and afflicted conclusion that had the meaning as expressed on its face, regardless of theactual intention of the respondent or its political ramifications. We areof the opinion that this is the appropriate approach to the question at issue in this case, in light of the weight and the responsibility accompanying the status of the President and the significance of the national referendum for confidence vote.

Therefore, no serious meaning should derive from certain incidentalexpressions included in the respondent's public announcement such as "although it is not a matter that I can determine," "althoughthere are some legal debates, ... should there be a political agreement," or "I think we can reach an agreement with ease." Then, the public statement of the respondent was an official expression toward thepublic of an unequivocally determined intention to implement a nationalreferendum by and under the authority of the President.

(C) The implementation of a national referendum is a complexprocess that consists of a series of conducts at each stage. A seriesof legal and factual conducts that may occur in a temporal order of the public announcement of a plan for national referendum, political preparation, statutory revisions where necessary, public notice onthe proposal of a national referendum, campaign on national referendum,preparation of pollbooks, voting, opening of ballot boxes, ballot counting, totalization of results, publication of the result of ballot-counting by the National Election Commission, notification of the result of the national referendum to the President and the Speaker of the National Assembly, and promulgation of the result of the national referendum by the President are all included in a single process to constitute asingle process of implementation of public authority in the implemen-

tation of a national referendum. Therefore, each of the conducts at each stage that are included in this process not only constitutes a single exercise of public authority as a whole but also constitutes an exercise of public authority by the actor, by and in itself, unless it is clearly against its nature. Viewed as such, the act of public announcement of the respondent constitutes an exercise of public authority that may duly be the

subject matter of the constitutional adjudication upon constitutional complaint as it constitutes the initialstage of the complex and inclusive public process of the implemen-

tation of a national referendum that is a single exercise of publicauthority as a whole, which may be implemented based on the publicauthority held by the respondent.

(D) It is not justified to deny the exercise of public authority represented by the act of publicly announcing a plan for a national referendum only because a subsequent procedure of public notice on the proposal of a national referendum has not yet been conducted. A single act in some occasions constitutes an exercise of publicauthority, yet, in other occasions, multiple acts conducted successivelyconstitute one process that as a whole constitutes an exercise of publicauthority. In the latter, the exact meaning of each conduct thatconsists of the inclusive process may not be assessed, by or in itself;instead, it may be correctly understood only when assessed in a broader context as related with the entire process. From this perspective,the public announcement of a plan to implement a national referendum,regardless of the manner of the announcement and without a subsequentpublic notice on the proposal of a national referendum, is undeniably an exercise of public authority that initiates the official process of a national referendum, at least to the extent that the seriousness of the announcement is affirmed as in this case, for the process of a national referendum may not begin but for this initial step of public announcement.

In conclusion, with respect to the question of at which point we may find the exercise of public authority that triggers the process of a national referendum, the majority in dismissing the matter finds such exercise of public authority at the point of public notice by the President on the proposal of a national referendum, whereas we thedissenters find such exercise of public authority at the point of publicannouncement by the President of a plan to implement a national referendum. As such, the dissenting opinion puts more emphasis upon the substance over the form.

There may well be a challenge to our position on the ground that the respondent may rescind or withdraw the plan or change his resolution and may not proceed to actually implement a national ref-

erendum. However, even if so, this change in circumstance would not retroactively affect the nature of the act at that time of publiclyannouncing the plan to implement a national referendum as an exerciseof public authority; should a non-implementation of the nationalreferendum be confirmed, this subsequent change in circumstance mayonly render the exercise of public authority to cease to exist from that time onwards, which may only be an issue in constitutional adjudication as the legal interest in protecting particular rights and interests.

(2)There is a probability that the act of the respondent infringesupon the right to political participation or national referendum andthe freedom against forced expression of political opinions of the com-

plainants, which are the basic rights of the complainants guaranteed by the Constitution.

This issue requires a more detailed review, therefore it will be discussed under the separate title in the following.

In sum, as discussed in the following, the national referendum for confidence vote is unconstitutional and infringes upon the right to political participation or national referendum and the freedom against forced expression of political opinions held by the citizens. Therefore, at the stage of reviewing legal prerequisites, there is aprima facieprobability based on the argument of the complainants of the infringement upon the above basic rights. Therefore, the constitutional complaints in this case meet legal prerequisites and should not be dismissed on procedural grounds.

The Minister of Justice argues that the constitutional complaints in this case are unjusticiable as the basic rights of the complainants have not yet been infringed because

it is uncertain whether or notthe national confidence referendum will be actually implemented. How-

ever, it is the established position of precedents of the ConstitutionalCourt that the requirement of current infringement upon the basic rightis satisfied, for the effective redress upon the basic right infringement, when the occurrence of the infringement is currently expected for certain even though the actual infringement occurs in the future (4 KCCR 659, 666, 92Hun-Ma68, etc., October 1, 1992; 8-2 KCCR 167, 175, 95Hun-Ma108, August 29, 1996; etc.). Here, as the intention of the respondent toward the implementation of the national confidence referendum was objectively expressed as indicated above, and the probability of the infringement upon the right to national referendum of the complainants by the implementation of the national confidence referendum thus became significantly high, the requirement of the 'current infringement' upon the basic right is satisfied. Therefore, the above argument of the Minister of Justice is groundless.

B.Whether the National Confidence Referendum

Infringes upon the Basic Rights of the Complainants

(1) Method for the realization of the sovereignty of the

people under our Constitution

Article 1(2) of the Constitution provides that "the sovereignty ofthe Republic of Korea shall reside in the people, and all state author-

ity shall emanate from the people," thereby declaring the peopleas the origin of the state authority and the sovereignty of the people as the basic constitutional principles on one hand and, on the other hand, expressly stating that the state authority is and should be exercised by the people.

Implementing the principle of the sovereignty of the people imposesa question of 'in which manner the people exercise the state authority.' The manner of exercising the state authority by the people is either by direct democracy or by representative democracy, depending upon whether the people directly or indirectly participate in the formationof the opinion and the position of the state. The Constitution adoptsrepresentative democracy, in principle, under which the President and the members of the National Assembly, who are directly elected by the people, determine the opinion and the position of the state on behalf of the people, with the exception of additional elements of direct democracy under Articles 72 and 130(2) by providing for a possible national referendum with respect to an 'important policy matter concerning national destiny and the 'proposed constitutional revisions.'

(2) Legal nature of the national referendum under the

Constitution

The Constitution does not provide the citizens with the right todirectly propose a national referendum (the so-called right to initiative). Instead, the Constitution providesthat a particular policy upon prop-

osition by the respondent under Article 72 or a constitutional revisionbill upon the respondent's proposition or the National Assembly reso-

lution under Article 130 may be subject to a national referendum. The national referendum provided under the Constitution is of the most limited nature among various methods of adding the elements of direct democracy to representative democracy, as it excludes the possibility of a national referendum upon citizen proposition or the possibility for the citizens to directly choose the subject matter of the national referendum, and merely allows the citizens to approve or disapprove, under the lead of the state institution, a policy or a constitutional revision bill affirmed by a state

institution.

(3)Unconstitutionality of respondent's act of submitting

the matter of the public's confidence in him to a national

referendum

(A) constitutional issues and standard of review in this case

The issue in this case, as raised by the complainants, is 'whetherthe act of the respondentsubmitting the matter of the public's con-

fidence in him to a national referendum is unconstitutional,' or 'whetherthe respondent is authorized by the Constitution to implement a na-

tional referendum to seek the confidence of the public in him.'

Any and all authority of the constitutional institutions including the respondent as the President derives only from a constitutional provision endowing such authority. The basic structure of the Con-

stitution and the organizations, missions, and authorities of the politicalconstitutional institutions should be regulated by the Constitution itself. That is, as the constitutional reservation applies to the authority ofthe constitutional institutions, any authority of the respondent to submitcertain matters to a national referendum is limited to that expressly provided by the Constitution in Article 72 and nothing else.

Therefore, in reviewing the constitutionality of the subject matter of this case, the constitutional provision that serves as the standard of review is Article 72 of the Constitution, which provides for theauthority of the respondent tosubmit matters to a national referen-

dum.

(B) guidance for interpretation of the 'important policies' within

the meaning of Article 72 of the Constitution

Article 72 of the Constitution provides that the "President maysubmit important policies concerning diplomacy, national defense, uni-

fication and other matters relating to national destiny to a national referendum if the President deems it necessary," thereby limiting the subject matter of a national referendum to the 'important policies concerning diplomacy, national defense, unification and other matters relating to national destiny.'The issue in this case is how to inter-

pret the 'important policies concerning the national security and existence.'

Article 72 of the Constitution is a provision setting forth anexception in light of the fact that the Constitution adopts representativedemocracy, in principle, for the realization of the sovereignty of the people and only very limited elements of direct democracy merely intwo cases that exclude thecitizen proposition. In light of the rela-

tionship between the principle and the exception, a provision setting forth an exception should not be expansively interpreted, but should instead be limitedly and strictly interpreted. Further, such provision of exception should be interpreted in a way alleviating the mutual tension and discord between different constitutional provisions as much as possible for a harmonious interpretation of the Constitutionas a whole. Especially in inserting certain elements of direct democracysuch as the national referendum into the constitutional structure basedon representative democracy, such inserted elements of direct democracyshould be harmonized with representative democracy. Therefore, the constitutional provision in the nature of directdemocracy such as the one providing for a national referendum shouldnot be in violation ofsuch fundamental constitutional principles as the authority of the stateinstitutions endowed with the state authority in the separation of powerscontext and the principle of rule of law.This perspective should also serve as an important guidance in interpreting Article 72 of the Constitution.

In reviewing first the concept of 'national destiny' in Article 72 of the Constitution,

matters concerning the national security and existence may be limitedly interpreted to mean a national emergency or a situation equivalent to it in light of the facts that 'national destiny' is generally a concept premised on an emergency situation and that the Constitution refers to the concept of 'national destiny' in relation to the respondent's authority to issue an emergency presidential decree under Article 76(2). It is possible, on the other hand, to more broadly interpret the concept of the national security and existence. However, in this case, there is no necessity to conclusively define the concept of 'national destiny,' as the subjectmatter of the national referendum under Article 72 of the Constitutionis limited to 'important policies' regardless of the interpretation ofthe concept of 'national destiny.' The 'important policies' under Article72 of the Constitution should be deemed to mean 'specific and iden-

tifiable policies,' for the national referendum is one of the methodsto realize direct democracy and its essential nature requires the citizensto participate in making a decision upon a particular matter of state affairs.

(C) whether the 'public's confidence in the respondent' constitutes

an 'important policy'

1) Should the confidence of the public in the respondent be interpreted to be included in 'important policies,' a national referen-

dum seeking the public confidence would have legally binding effect. The national referendum set forth in Article 72 of the Constitution is not merely a 'public poll' surveying the opinion of the public for reference purposes, but instead is a 'national ballot' endowing bindingeffect according to the result of the vote. Therefore, should the resultof a national referendum express the public's lack of confidence in the respondent upon submission by the respondent of the confidence of the public in him as the subject matter of a national referendum, the effect of the national referendum would require the respondent'sresignation. Therefore, if the 'important policies' within the meaningof Article 72 of the Constitution were to be understood to include the'public confidence' in the President, this would result in adding onemore ground of 'public's lack of confidence upon national referendum'for the resignation of the President by way of constitutional interpre-

tation. However, as the respondent is burdened with extremely sig-

nificant responsibilities as the head of the state, the ultimately responsible party in state affairs, and the chief of the executive branch under the Constitution, the Constitution clearly provides forthe matters concerning the status of the respondent in the Constitutionitself such as the term of office, temporary assumption of authority in case of vacancy thereof or other accidents, and the privileges and obligationsex officio, in light of the importance of the constitutional status of the respondent as President. Specifically, the Constitution in Article 68(2) provides for the grounds for vacancy in presidentialoffice, which are conclusively stated, in addition to voluntary resig-

nation or death during the term, as the "disqualification by a court ruling or for any other reason" for an involuntary resignation from office. Furthermore, the Constitution emphasizes politics by the President that is both responsible and responsive unaffected by the confidence of the public during the term of the office, by providing that the term of the presidential office is absolutely guaranteed for five years (Article 70 of the Constitution), that the President shall not be, in principle, indicted for criminal charges during the service in office (Article 84), and that the President may be removed from the office during the term solely by an impeachment adjudication (Article 65).

From this perspective, submission of the public confidence in the President to a national referendum with the ensuing resignationin case of lack of confidence as the result of the national referendumcannot conform to the constitutional provisions such as Article 70 that absolutely guarantees the term of the respondent's office or Article 68(2) that limits the vacancy of the presidential office to the enumerated grounds. Therefore, the confidence held by the citizens in the President is not included in

'important policies' within the meaning of Article 72 of the Constitution.

2) Furthermore, there have been ample examples in history of various nations where a holder of the state authority submitted the question of confidence to a national referendum thereby forcing the citizens concerned with political chaos to express their confidence in their ruler and then made use of the result thereof to fortify his or her political position. From such lessons, our Constitution expressly limits the subject matter of the national referendum to 'importantpolicies' under Article 72, thereby declaring that a national referendumshould not be abused to turn to one that has hindered the developmentof democracy as indicated in history.

(D) Sub-conclusion

To conclude, the respondent lacks the constitutional authority to seek public confidence in him by way of a national referendum, and the respondent's attempt to reconfirm the confidence of the citizensalready indicated in the past presidential election by way of a nationalreferendum is an unconstitutional exercise of the national referendummechanism provided under Article 72 of the Constitution in a way that is not permitted by the Constitution.

Further, the respondent would place an undue burden in the public's decisionmaking process beyond the constitutional authority endowed in him by relating a particular policy to the matter of con-

fidence and announcing that he 'would resign in case of non-confi-

dence.'

Therefore, the respondent is not allowed by the Constitution to ask the confidence held by the public in him by way of a national referendum. The respondent is not permitted to do so under the Constitution as it is an unconstitutional act.

(4) Whether the act of the respondent infringes upon the

basic rights of the complainants

The act of the respondentsubmitting the matter of public's con-

fidence in him to a national referendum is unconstitutional, and such an act prohibits the citizens from legitimately participating in theprocess of the exercise of state power by autonomous decisionmakingupon specific state affairs through national referendum, thereby in-

fringing upon the right to political participation or national referendumand the freedom against forced expression of political opinions held by the complainants as citizens.

This issue is discussed in further detail in the following paragraphs.

The right to political participation as a right to participationmeans in its narrow or traditional meaning the right to vote and the right to hold public office, and in its broader and modern meaning the entirety of the right to participate in the political process. As such, the right to political participation means that the citizens, asthe holders of the sovereignty, may have their political opinions justlyreflected and represented in state affairs by actively participating inthe process of the establishment and the exercise of the state authoritythrough the establishment of political parties, votes, service in the publicoffice, and national referendum.

If the respondent were to implement a national confidence refer-

endum, notwithstanding the fact that it is not permitted by the Con-

stitution, such national confidence referendum would undemocraticallydistort the opinion of the citizens as voters and would further denigratethe national referendum mechanismto a means to implement author-

itarian politics unduly labeled as public legitimacy. Such nationalconfidence referendum then would infringe upon the right of the citizensas voters to legitimately participate or withdraw to participate in theprocess of the exercise of state authority by autonomous

decisionmakingupon specific state affairs through national referendum, thereby in-

fringing upon the right to political participation or national referendumand the freedom against forced expression of political opinions held by the citizens.

There may be an argument that there is no room for the infringement upon the right to national referendum for the citizens may decide not to participate in the national referendum as the citizens are not forced to participate, even if the national referendum is unconstitutional.

However, unlike general votes for public offices, in a national referendum, withdrawal from participation in the national referendum does not mean severance from its result. Although the Constitutionis silent of the quorum for the national referendum for policy mattersunder Article 72, it requires under Article 130(2) a quorum of thevotes of one-half of all voters registered for the election of membersof the National Assembly or more and the approval of one-half of thevotes or more. Applying the quorum requirement of Article 130(2)to the case of Article 72 by inference, choosing not to vote is counted toward disapproval of the subject matter of the national referendum. For example, when a citizen withdraws from votingbelieving that a national confidence referendum is unconstitutional,and the instant those who do not participate in the national confidencereferendum constitute a majority, such withdrawal has the same effect as voting to express lack of confidence. This would distort the opinion of the citizens who withdraw from voting on the beliefthat a national confidence referendum is unconstitutional although theyapprove the performance of the respondent as lack of confidenceitself and, further, would distort the opinion of the citizens who with-

drawfrom voting on the belief that it is not appropriate to remove the respondent during his term of office even though theydo notapprove the performance of the respondent as an agreement to removalduring the term.

On the other hand, in order to avoid such distortion of opinions, even those who believe that a national confidence referendum is un-

constitutional are forced to participatein the national confidence ref-

erendum. Such participation in voting is not a free vote, but israther an exercise of the right to vote forced by the mechanism and against the conscience, which eventually results in the infringement upon the right to national referendum. Furthermore, such national confidence referendum would distort the opinion of the citizens who vote for approval on a belief that they cannot but vote for approval to prevent chaos in state affairs to be caused by non-confidence inthe respondent although they actually do not approve the performanceof the respondent nor they believe the national confidence referendumto be constitutional as genuine confidence in the respondent or approvalof the performance of the respondent, which is a double distortion of the opinion of such citizens.

To conclude, an implementation of a national confidence referendumthat is not permitted by the Constitution prohibits free exercise of the right to national referendum held by the citizens by practicallyforcing the citizens to vote who believe that such national confidencereferendum is unconstitutional and wish to withdraw from voting.Furthermore, an implementation of such national confidence referenduminfringes upon the right to national referendum by resulting in adistortion apart from genuine opinions in considerable part both ofthe citizens who participate in voting and who withdraw from voting.

This phenomenon, on the other hand, infringes upon the freedom against forced expression of political opinions held by the citizens.Those who vote in an unconstitutional national confidence referendumsolely because they do not wish to remove the respondent during theterm, although they do not approve the performance of the respondent, are practically forced to express their political opinions. Likewise,those who intend to withdraw from voting on a belief that the nationalconfidence referendum is

unconstitutional, although they approve the performance of the respondent, may yet participate in voting in anunconstitutional national confidence referendum solely to avoid distor-

tion of their withdrawal as non-confidence or disapproval, which is also a practically forced expression of political opinions. These are merely part of the recognizable examples, and the political opinions held by the citizens might be practically forced to be expressed invarious other forms. This aspect also constitutes an infringement uponthe basic rights.

C. Conclusion

Therefore, in this case, the complaints for constitutional adjudi-

cation should not be dismissed, and should instead be reviewed on the merits to hold unconstitutional the public announcement by therespondent of the plan to implement a national confidence referendum.

Justices Yun Young-chul (Presiding Justice), Ha Kyung-chull, Kim Young-il, Kwon Seong (Assigned Justice), Kim Hyo-jong, Kim Kyung-il, Song In-jun, Choo Sun-hoe, and Jeon Hyo-sook

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Aftermath of the Case2)

Although the Constitutional Court did not proceed to adjudicateupon the merits of the constitutionality of national confidence referen-

dum, no national referendum seekingconfidence of the publicin the President has yet been implemented subsequent to this decision.