South Korea

I. Introduction
Population: 48,422,644 (July 2005 est.) Area: 98477 sq km Capital: Seoul Languages: Korean Religions: Christianity 49%, Buddhism 47%, Confucianism 3% Political System: Republic (being the 6th Republic since 1987) Freedom House Rating (2005 Ed.): PR: 1, CL: 2, Status: Free Constitution: October 27, 1987 (accepted by referendum) GNP/capita: US$14,162 (2004) DD practice: 9 (6 national and 3 local)1

II. Legislation
Types of Referendums: The constitution of South Korea provides for both compulsory and optional referendums at the national level, while it seems that no initiatives are allowed. At the local level, the Local Government Act allows the chief executives of local governments may refer certain issues for referendums. A. Constitution2 Compulsory Referendums for Constitutional Amendments: According to Chapter X of the Sixth Republic Constitution, the President or a majority of the total members of the National Assembly may propose amendments to the Constitution. Article 129 provides that, proposed amendments to the Constitution shall be presented by the President to the public for at lease twenty days. Then the National Assembly has to vote on the proposed amendments within sixty days after the said public

See http://www.cia.gov/cia/publications/factbook/geos/ks.html (last visited Oct. 30, 2005); http://www.freedomhouse.org/ratings/allscores2005.xls (last visited Nov. 10, 2005); http://siteresources.worldbank.org/DATASTATISTICS/Resources/GNIPC.pdf (last visited Nov. 23, 2005). For the full text of the constitution, please refer to http://www.ccourt.go.kr/english/welcome01.htm (last visited Nov. 24, 2005).

announcement. Adoption of constitutional amendments by the National Assembly requires a two-thirds majority of the total members of the National Assembly. At the last stage, amendments to the Constitution must be approved by a national referendum. Article 130 (2) provides that the proposed Amendments to the Constitution be submitted for a national referendum within thirty days after their adoption by National Assembly, and be approved by a majority of all valid votes with a turnout higher than an absolute majority of voters eligible to vote in elections for members of the National Assembly. Optional Referendums: Article 72 of the South Korean Constitution provides that the President may submit important policies relating to diplomacy, national defense, unification, and other matters relating to the national destiny to a national referendum if he deems it necessary.3 The relevant articles of the South Korean Constitution regarding referendums are listed as below: Article 72 (Referendum on Policy) The President may submit important policies relating to diplomacy, national defense, unification, and other matters relating to the national destiny to a national referendum if he deems it necessary. Article 114 (Election Management Committees) (1) Election Management Committees are established for the purpose of fair management of elections and national referenda, and dealing with administrative affairs concerning political parties. (2) The Central Election Management Committee is composed of three members appointed by the President, three members selected by the National Assembly, and three members designated by the Chief Justice of the Supreme Court. The Chairman of the

For the English text of South Korean Constitution, see http://www.oefre.unibe.ch/law/icl/ks00000_.html.

Committee is elected from among the members. (3) The term of office of the members of the Committee is six years. (4) The members of the Committee may not join political parties, nor participate in political activities. (5) No member of the Committee can be expelled from office except by impeachment or a sentence of imprisonment or heavier punishment. (6) The Central Election Management Committee may establish, within the limit of laws and decrees, regulations relating to the management of elections, national referenda, and administrative matters concerning political parties and may also establish regulations relating to internal discipline that are compatible with law. (7) The organization, function, and other necessary matters of the Election Management Committees at each level are determined by law. Article 115 (Instructions) (1) Election Management Committees at each level may issue necessary instructions to administrative agencies concerned with respect to administrative matters pertaining to elections and national referenda such as the preparation of the pollbooks. (2) Administrative agencies concerned, upon receipt of such instructions, have to comply. Article 116 (Campaigns) (1) Election campaigns are conducted under the management of the Election Management Committees at each level within the limit set by law. Equal opportunity has to be guaranteed. (2) Except as otherwise prescribed by law, expenditures for elections are not imposed on political parties or candidates. Article 128 (Proposal to amend the Constitution) (1) A proposal to amend the Constitution can be introduced either by a majority of

the total members of the National Assembly or by the President. (2) Amendments to the Constitution for the extension of the term of office of the President or for a change allowing for the re-election of the President are not effective for the President in office at the time of the proposal for such amendments to the Constitution. Article 129 (Publication of proposed amendments) Proposed amendments to the Constitution are presented to the public by the President for twenty days or more. Article 130 (Approved by National Assembly and by Referendum) (1) The National Assembly decides upon the proposed amendments within sixty days of the public announcement, and passage by the National Assembly requires the concurrent vote of two-thirds or more of the total members of the National Assembly. (2) The proposed amendments to the Constitution are submitted to a national referendum not later than thirty days after passage by the National Assembly, and are confirmed by more than one half of all votes cast by more than one half of voters eligible to vote in elections for members of the National Assembly. (3) When the proposed amendments to the Constitution receive the concurrence prescribed in Paragraph (2), the amendments to the Constitution is finalized, and the President promulgates it without delay. B. Statutes 1. National Referendum Act South Korea had a National Referendum as early as in 1962. National Assembly enacted the National Referendum Act by Law 1166 of October 12, 1962. This Act provided for the procedures and methods of national referendums on proposed amendments to the Constitution conducted under Article 9 of the Act on Emergency Measures for National Reconstruction. This Act, with two revisions, also applied to the

referendum for approving the Constitution of December 17, 1962, which was the first referendum of South Korea.4 In subsequently years, the National Referendum Act underwent several revisions, repeals and re-enactment in 1963, 1969 and 1973, respectively, mainly for the interests of governments. The current National Referendum Act was an enactment last amended by the Law 4086 of March 25, 1989. The current National Referendum Act, containing 125 articles, provides, among others, (1) that the eligible voters shall be at the age of twenty or over; (2) that political parties may wage pro- or anti-campaigns regarding a national referendum, such as, gatherings with speeches, broadcast interviews, on the condition that any person not qualified to gain membership to a political party under the Political Parties Act shall not engage in any campaign concerning a national referendum; and (3) allows each political party to select three persons among eligible voters as observers of a national referendum.5 2. Local Referendum Laws The Local Government Act was passed by National Assembly on January 29, 2004 and entered into force six months later. On the same day, The Resident Referendum Act (or Local Referendum Act) was passed and tool effect on July 30, 2004, too. According Article 13 (2) of the Local Government Act, chief executives of local government can refer certain important matters to referendums. The Local Referendum Act provides that, for any proposal to be accepted, there shall be at least one-third of voters participating in voting and a majority of votes cast being in favor of the proposal.6 Unfortunately, no English texts of these two statutes are available, to our

An English abstract of National Referendum Act 1962 is available at the official website of the Law Library of Congress of South Korea. See http://www.glin.gov/view.do? documentID=91682&summaryLang=en&fromSearch=true. An English abstract of National Referendum Act 1989 is available at the official website of the Law Library of Congress of South Korea. See http://www.glin.gov/view.do? documentID=91990&summaryLang=en&fromSearch=true. This specific information is provided by Prof. Lee Jung Ok, Professor of Sociology, Catholic University of Daegu, South Korea.

best knowledge.7 National Assembly enacted the Resident Referendum Act by Law 7124 of January 29, 2004. This Act, containing 30 articles, regulates the matters necessary for resident (local) referendums, such as, issues, requirements, and procedures, in order for the local governments to hold resident referendum on important issues thereof. This Act provides, among others, (1) that the competent election commission be in charge of the affairs of resident referendum, such as, issue of the notice on resident referendum and management of voting/ballot counting; (2) that the residents of 20 years or older shall be the eligible voters, while foreigner residents may be granted the voting right under their satisfying certain requirements; (3) that the issues to be approved by the resident referendum shall be determined by an ordinance among the important issues which may impose excessive burden or influence to the subject residents; (4) that some issues, such as budget, assets management, tax, and establishment and/or change of the administrative agent, be excluded from the resident referendum; and (5) that the issues be approved by a majority of valid votes when one-third or more of the resident voters vote.8

III. Practice
Six nationwide referendums have been held in the Republic of Korea since 1962. The first five referendums were conducted under the emergency rule or martial law, and all led to expansion of presidential powers. Generally speaking, the first five referendums in the Republic of Korea were not the results of democratic development. On the other hand, they were instruments of political leadership to consolidate their regimes. The last referendum held in 1987 approved the current Constitution of South

An English abstract of both laws could be retrieved from the official website of the Law Library of Congress of South Korea. See http://www.glin.gov/search.do. An English abstract of National Referendum Act 1989 is available at the official website of the Law Library of Congress of South Korea. See http://www.glin.gov/view.do? documentID=98893&summaryLang=en&fromSearch=true.

Korea. At the local level, three local referendums have been held in South Korea. The first referendum took place on December 17, 1962. This referendum was held to adopt a new constitution after General Park Chung Hee ousted the former government. Following the success of the first referendum, the second referendum was conducted on October 18, 1969, which was aimed at extending the then-President Parks term.9 The acceptance of this referendum broke the two-term limit prescribed by the then-constitution.10 On November 21, 1972, under the martial law which was declared to end mass demonstrations, another (the third) referendum was held to reform the constitution which then became the Constitution of the Fourth Republic. A referendum was held again to consolidate President Parks authority and his policy. This was the fourth referendum on February 12, 1975. After the assassination of President Park on October 26, 1979, followed by a bloody military coup on December 12, 1979, General Chun Doo Hwan became the de facto leader of South Korea on August 18, 1980. Then Chun held the fifth referendum to approve the Constitution of the Fifth Republic on October 22, 1980.11 On October 12, 1987, the National Assembly passed a constitutional bill, which was approved by 93 percent of the voters in a national referendum on October 28, 1987. This was the sixth referendum of South Korea. This referendum validated the Constitution of the Sixth Republic, which became effective on February 25, 1988, when Roh Tae Woo was inaugurated as President. The sixth referendum could be seen as a
9

10 11

Park Chung Hee served as the 5th, 6th, 7th, 8th, and 9th President of South Korea. Although Park is generally credited as playing a pivotal role in the development of South Korea's economy by shifting its focus to export led industrialization, his authoritarian rule were harsh and unpopular. Park was assassinated on October 26, 1979 by Kim Jaekyu. See http://en.wikipedia.org/wiki/Park_Chunghee. KYUNG CHO CHUNG, KOREATHE THIRD REPUBLIC 55 (1971). Chun has been the de facto leader of South Korea since the coup in December 1979. On May 17, 1980, General Chun first expanded martial law to the entire country and dissolved the National Assembly. Many politicians were arrested, including opposition politician Kim Dae-jung. Protests across the nation were ruthlessly suppressed, most brutally in Gwangju, where hundreds were killed in so-called Gwangju
Massacre. In August 1980, then-President Choi Kyu-ha resigned. In February 1981, Chun was officially elected President under the Constitution of the Fifth Republic. He served president until February 25, 1988. See

http://en.wikipedia.org/wiki/Chun_Doo-hwan.

key event in modern history of South Korea that preserved the results of democratization hard earned by the people of South Korea.12

IV. Prospects
Recent Development (1): President Rohs Call for Referendum on Presidency In October 2003, President Roh Moo-hyun proposed a national referendum on his rule. He claimed that he would step down if the vote went against him. In this case, he would conduct a new presidential election at the same time as the parliamentary election in April 2004. His announcement brought about a fierce dispute on the constitutionality of his proposal because such a proposal was not expressly provided for in Article 72 of Constitution. President Roh Moo-hyun contended that it was not necessary to amend the Constitution before holding such a referendum. He insisted that amending the National Referendum Act was enough. However, Rohs proposal was considered unconstitutional by the opposition, who threatened to impeach Roh.13 In November 2003, former speaker of National Assembly Lee Man-sup and several civic groups filed a suit with the Constitutional Court and asked it to rule on the constitutionality of Rohs proposal. The Constitutional Court set aside the legal challenge on the ground of not ripe for adjudication with a close decision on November 27, 2003.14 While four justices alleged Roh had violated the constitution, a majority of five justices maintained that Rohs call for a referendum was not detailed enough. Hence, this case was not yet ripe for the court to make a substantive decision. However, the majority of five justices also indicated that, only when President Roh announces a detailed plan and specific schedule for such a referendum, then could this issue be decided on the merits.15 Eventually Roh gave up his original plan to hold such a
12 13 14

15

http://www.country-data.com/cgi-bin/query/r-12340.html. See http://en.wikipedia.org/wiki/Roh_Moo-hyun. Constitutional Court of the Republic of Korea, Decision on President's Proposition for National Confidence Referendum Case [15-2(B) KCCR 350, 2003Hun-Ma694, etc., (consolidated), (November 27, 2003)]. For the English text of this decision, see http://www.ccourt.go.kr/english/decision2005.htm. Court throws out challenge to Roh's call for referendum--Ruling paves way for citizens to oust

referendum. Recent Development (2): Relocation of the National Capital Case There was another hotly debated issue, relocating the national capital from Seoul to Yeongi-Gongju, which was also related to the national referendum and adjudicated by the Constitutional Court, too. President Roh had campaigned for the relocation and argued that such move needed not to be put for referendum. Mr. Roh and his supporters wanted a new capital to tackle Seouls being overcrowded and its dominance of the economy. Twenty millions people, or 40 percent of the entire population of South Korea, are living in or around the capital. In December 2003, National Assembly passed New Capital Special Law in an attempt to lay down the legal basis for relocation. Under this law, it is not necessary to amend the Constitution or to hold a national referendum on the relocation issue. In July 2004, 169 people, including 50 Seoul city councilors, filed a suit with Constitutional Court, contending that relocating capital without being approved by a national referendum was a violation of Constitution. In October 2004, the Constitutional Court declared the New Capital Special Law was in violation of Constitution. Eight out of nine justices of the constitutional court held that the relocation decision was against the constitution. The court held that although the capital of the ROK was not written in the Constitution, Seoul had been the capital for six hundred years, and hence, this location of national capital had become a constitutional convention. Therefore, for any relocation of national capital, the government needed either to amend the constitution or hold a national referendum.16 Though Roh accepted the constitutional courts decision, but insisted on necessity

16

president by popular vote, CENTRAL NEWS AGENCY (Nov. 28, 2003), available at http://www.etaiwannews.com/Asia/2003/11/28/1069986440.htm. See http://www.libertytimes.com.tw/2004/new/oct/22/today-int4.htm (last visited Nov. 24, 2005); http://c2d.unige.ch (last visited Nov. 24, 2005); http://hk.news.yahoo.com/041021/12/15y37.html (last visited Nov. 24, 2005).

of diluting the powers concentrated in the Seoul region.17 Maybe he will hold a national referendum on this issue in the future, in that any constitutional amendment needs to be approved by a national referendum, too. For further discussions about the direct democracy practice and future prospects in South Korea, please refer to the essay written by Professor Lee Jung Ok, Referendum and the Deepening Democracy in South Korea, listed in Appendix II of this guide.

17

See http://c2d.unige.ch (last visited Nov. 24, 2005).