stated that "I announced last week that I would submit myself for
public confidence. ... Although it is not a matter that I can determine,
I think a national referendum is a correct way to do this. Although
there are disputes as to legal issues, I think it is feasible even under
the current law by interpreting the 'matters concerning national security' more broadly, should there be a political agreement," thereby
suggesting a confidence vote to be instituted in December of 2003.
Debates concerning the constitutional permissibility of a confidence
vote were thereby caused. Finally, such debates upon the constitutionality of a confidence referendum reached the Constitutional Court
through a constitutional petition, but the Constitutional Court, in its
majority opinion of five Justices in 2003Hun-Ma694 (issued on November
27, 2003), dismissed such constitutional petition on the ground that
the 'act of the President that is the subject matter of the case was
not an act accompanying legal effect but an expression of a mere
political plan, therefore did not constitute an exercise of governmental
power.'
(B) Article 72 of the Constitution vests in the President the authority to institute national referendum by providing 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 or she deems it necessary. Article 72 of the
Constitution connotes a danger that the President might use national
referendum as a political weapon and politically abuse such device
by employing it to further legitimize his or her policy and to strengthen his or her political position beyond as a mere means to confirm
the will of the public toward a specific policy, as the President monopolizes the discretionary authority to institute national referendum
including the authority to decide whether to institute a national
referendum, its timing, and the specific agendas to be voted on and
the questions to be asked at the referendum, under Article 72 of the
Constitution. Thus, Article 72 of the Constitution vesting within
the President the authority to institute a national referendum should
be strictly and narrowly interpreted in order to prevent the political
abuse of national referendum by the President.
(C) From this standpoint, the 'important policy matters' that
can be subjected to a national referendum under Article 72 of the
Constitution do not include the 'trust of the public' in the President.
An election is for the 'decision on persons,' that is, an election
is to determine the representatives of the public as a premise to
make representative democracy possible. By contrast, the national
referendum is a means to realize direct democracy, and its object or
subject matter is the 'decision on issues,' that is, specific state policies
or legislative bills. Therefore, by the own nature of the national re-
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