Professors’ Solidarity for Freedom & Justice
[Editor’s note: The liberal Democratic Party, which holds supermajority status in the National Assembly, is trying to pass a controversial prosecution reform bill aimed at completely abolishing the prosecution’s investigative powers. The conservative People Power Party (PPP), running low on options, has proposed to hold a national referendum on the topic and have the parliament decide on the basis of its outcome. The PPP proposed holding a referendum on the sidelines of the June 1 regional and local elections. The National Election Commission, however, argued that holding a referendum in such a short time is impossible without amending the current Constitution. In 2014, the Constitutional Court found Article 14, Section 1, of the Referendum Act violates the Constitution, as it violates the voting rights of overseas voters. The provision required overseas voters to have resident registration and residence in South Korea to be named on the voters’ list. However, the Constitutional Court found it violates the Constitution as overseas voters are citizens of South Korea regardless of whether they have resident registration and residence. The provision was ineffective starting in 2016 but no amendment has been made since then in the National Assembly. Thus, the NEC is arguing that a referendum cannot be conducted unless the provision is revised so that it no longer discriminates against overseas voters. The PPP said that it will submit an amendment to the law before the upcoming election.]
The National Election Commission (NEC) said that a referendum on a bill to completely abolish the prosecution’s investigative powers is not possible. The NEC should clarify whether this position was settled through a plenary session of the NEC members or whether it was the personal opinion of a specific person inside the commission. It is not certain how this position will be sorted out through a plenary session of the NEC, but the argument that a referendum is not possible due to constitutional issues is not valid as shown below, and it is not the NEC’s business.
First, the NEC is an executive agency, not a constitution interpretation agency.
The NEC is nothing but an agency that is established for the purpose of “fair management of elections and national referenda,” as Article 114 of the Constitution states. In fact, on July 2, 2019, the NEC said on its own that “it is a matter that needs to be judged by the Constitutional Court, not the NEC,” referring to the provision that the National Assembly’s election districts must be finalized by one year before the election day. Article 92 of the Referendum Act states, “Any voter, who has an objection to the validity of the national referendum, may bring an action to the Supreme Court,” and the Supreme Court can decide whether to fully invalidate or partially invalidate a referendum. The NEC’s early action of calling a referendum impossible steals the judiciary’s final authority to weigh procedural and substantive flaws. This is by no means acceptable.
Second, the NEC is only responsible for managing the referendum and has no authority to reject it.
Article 115 of the Constitution mandates that election commissions “issue necessary instructions to administrative agencies concerned with respect to administrative affairs pertaining to elections and national referenda such as the preparation of the poll books.” This is a constitutional regulation on the role and responsibilities of the NEC. To affirm that “a referendum [on this matter] is impossible” because a clause of the referendum law, a sub-law of the nation’s Constitution, was found to be out of agreement with the Constitution simply reveals its arrogance. This is an act of giving up on the NEC as a constitutional institution. It is a disgrace to constitutional democracy and a serious constitutional crime of sabotaging the implementation of the constitution. It is the National Assembly’s dereliction of duty for neglecting the constitutional provisions related to the referendum that were in violation of the Constitution for this long time, but the NEC cannot avoid its own responsibility for abetting the situation.
Third, the NEC cannot exceed the constitutional authority of the president.
The NEC’s refusal to conduct an administrative referendum work directly violates the Constitution by arbitrarily interpreting and infringing on the president’s right to call for a referendum. Even if there is a problem with the effectiveness of a constitutional nonconformity decision, the NEC should not step up and block a referendum requested by the president. The Constitutional Court’s partial constitutional violation decision does not give the NEC a basis for restricting the president’s unique authority. The sovereign people of the Republic of Korea know as common sense that the president is the “chief commander of constitutional protection,” and therefore firmly trust the president’s responsibilities. Sovereign citizens acknowledge the president as the chief defender of the Constitution and ask the president to take his role to protect the Constitution as he or she solemnly swears before the Constitution as follows.
<Article 66, Section 2: The President shall have the responsibility and duty to safeguard the independence, territorial integrity and continuity of the State and the Constitution.
Article 69: The President, at the time of his/her inauguration, shall take the following oath: “I do solemnly swear before the people that I will faithfully execute the duties of the President by observing the Constitution, defending the State, pursuing the peaceful unification of the homeland, promoting the freedom and welfare of the people and endeavoring to develop national culture.”>
Fourth, the absurd remarks of the NEC run counter to the spirit of the Constitutional Court, which made a decision on the violation of the Constitution.
The court’s decision guarantees overseas voters the right to vote. Overseas voters are foreign residents without resident registration and residence in Korea. If it is the Constitution that they should be guaranteed the right to vote, shouldn’t they guarantee the right to vote for 50 million people who are more directly affected by domestic law and pay taxes in the Republic of Korea? Where did the bizarre conclusion come from that since the voting right of the overseas electors is not guaranteed, the voting rights of the people of the Republic of Korea are also not valid? This is an insult to the sovereign people and a serious violation of basic rights. Is the NEC an institution that exists above the Constitution and above the people?
Fifth, there is no guarantee that the Constitutional Court’s decision eight years ago is still valid.
Three constitutional judges have already expressed their opposition to overseas voters being given the right to vote. The key point is that the interests of people living in foreign countries and the people living in Korean territory cannot be the same, and it is not unconstitutional even if they do not give them the right to vote due to differences in seriousness and proximity to policies. In particular, the fundamental question cannot but be asked whether overseas voters should participate in domestic criminal justice procedures, such as the prosecution reform bill that would completely abolish the prosecution’s investigative powers. As seen in previous cases, the Constitutional Court’s decisions always change, as the punishment for adultery was constitutional and eventually unconstitutional. It is not right for the NEC to reject the referendum based on the Constitutional Court’s decision in 2014.
Sixth, it should not be forgotten that the Constitutional Court’s decision maintained by the NEC contradicts itself.
The Constitutional Court said that it is constitutional not to give voting rights to overseas voters in re-elections and by-elections for lawmakers. The reason is that it is physically impossible to do administrative business, such as preparing a list of voters, because one cannot expect when such elections will occur in advance. In addition to this, Article 49 of the Referendum Act states, “The President shall announce publicly at the same time the date and a proposal of national referendum at the latest eighteen days before the national referendum is held.” Considering the characteristics of election affairs, it is physically impossible to confirm the list of overseas voters within 18 days and have them participate in the election. Under the Public Official Election Act alone, it requires the overseas voter list to be confirmed 30 days before the election day. However, the previous Constitutional Court’s decision did not find Article 49 unconstitutional. If so, the Constitutional Court’s decision is virtually invalid, as it demanded an unrealizable legislative amendment. The NEC’s argument that it will follow the court’s decision means that they are fine with the idea that the referendum law can be paralyzed indefinitely and that constitutional norms can be impracticable.
Seventh, the NEC’s irresponsible words and actions are contrary to the presumptive intention of the Constitution, which is the essence of a state agency.
The fact that the constitution was not modified even after the Constitutional Court’s violation of the constitution decision by the NEC or the National Assembly means that there was an implicit intention to believe that constitutional state affairs could be possible due to other similar laws or practices. If this was not the case and they knew referendums would not work constitutionally but did not take any action up until now to say referendums are impossible due to constitutional nonconformity, it is nothing short of a confession of treason. The constitutional order can be said to be normal when the procedure for a constitutional amendment can be operated at any time. According to the NEC’s argument, the National Assembly should be dissolved and the NEC should be disappeared. And the people should be able to decide their political fate regardless of anything. Does the NEC really want this kind of situation?
The incompetence and arrogance of the NEC, which tried to portray its “basket election” scandal as simply poor management, are causing a conflict among those who harm their own existence. (Editor’s note: The scandal refers to mismanagement that occurred during the March 9 presidential election where citizens found out that the NEC was storing ballot papers that people used to vote in open baskets during the voting time for people who tested positive for COVID-19. The NEC explained that they ran out of official ballot boxes because there were more people who came to vote during voting hours for those who tested positive. Some civic groups argued that this was a sign of election fraud.) The NEC should quietly fulfill the role of judges and managers in the process of implementing the referendum. If there is a problem, it is the job of the law enforcement agency in accordance with the relevant laws, not the NEC, to step up in advance. Do not underestimate the public’s suspicion and anger toward the NEC.
April 28, 2022
