Analysis and Reasoning Behind The Korean National Initiative
A human being is sovereign by birth. However, in a society of many human beings individuals must cede some measure of sovereignty to the constituency of the whole governing the polity. The exercise of sovereign constituent power must of necessity be by majoritarian rule. The alternative is anarchy, monarchical, autocratic or minority rule.
People are sovereign and all political power emanates from them. The central power of society’s polity is lawmaking––the ability to create a government by constitution, to alter the constitution and to make laws for the civic health of the polity and the happiness of its constituents. Upon this foundation rests democracy.
The structure of democratic polities was representative government. It accommodated the wishes of the elites who initially formed their governments. It also perpetuated their power. Unfortunately, representative government limits the sovereignty of citizens to that of merely electing representatives. For citizens to exercise full sovereignty they obviously must exercise powers beyond the mere selection of representatives––powers that permit them to access the central power of government––the power to alter constitutions and make laws.
The purpose of the Korean National Initiative is to reclaim the full sovereign political power that Korean citizens have been denied by the initial structure of their representative government as defined in their Constitution. Koreans have been precluded from voting on the important political decisions that affect their lives.
There is another purpose. The empirical evidence is overwhelming worldwide that representative government has failed to bring peace and provide for the happiness of the people it serves. Fundamental change is warranted. There are only two possible venues for change: the government, wherein lies the structural deficiency creating our problems, and the people, who lack procedures to exercise their full sovereign powers to bring about fundamental structural change in representative government.
The Korean National Initiative restores full sovereign powers the Korean People were denied when their democracy was initially set up. The Korean National Initiative automatically confers membership on all citizens in the Citizens Assembly and equips them with legislative procedures to make laws in a working partnership with the representative government’s National Assembly and the legislative bodies of their provincial and municipal governments.
Note: The text of the Korean National Initiative is reproduced here for convenience as notes and comments are added in italic to facilitate understanding of the text. If there are no comments it is because the text is deemed to be self-explanatory.
Chapter X Amendments to the constitution
Article 131 [Citizen Assembly]
- The referendum herein sanctions the Korean National Initiative process that introduces an Amendment to the Korean People enabling them to amendment their Constitution and thereby create the Citizens Assembly.
The referendum sanctions the introduction and ratification of the Korean National Initiative by the Korean People. The constitution only provides introductory power to the President and the National Assembly; however, only Korean citizens can ratify an amendment. The ratification power, the final act of approval, is superior to the introductory power; therefore common sense dictates that since citizens have the final authority to approve they implicitly have the preliminary power to introduce amendments even though the Constitution does not specifically provide for it. Therefore in order to avoid any legal doubt, the first section of the amendment is a self-actuating sanctioning clause of the introduction of the Korean National Initiative by the citizens of Korea as a legal expression of the will of the Korean People.
- Citizens of Korea compose the Citizens Assembly vested with legislative powers to introduce and enact constitutional amendments and laws.
This section defines the composition of the Citizens Assembly as registered citizens with the power to amend constitutions and make laws.
- A Citizens Trust is herein created to administer the legislative procedures of the Citizens Assembly. A Board of twenty one Trustees and a Director shall govern the Citizens Trust.
This section creates a Trust, an administrative agency similar to what all legislative bodies have to administer their procedures and do the necessary housekeeping for the members of the legislative body. It authorizes a Trust of 21 trustees and a director to govern the Trust.
- The legislative procedures and the terms of office of the Trustees and the Director are prescribed by a law herein enacted as companion legislation.
This section provides for the enactment of legislative procedures in Korean law and not in the Constitution. Detailed procedures would be too much clutter for a constitution. Deliberation is a vital part of lawmaking; it is accomplished through the use of legislative procedures that have been developed by trial and error experiences over centuries and exist in the legislative bodies of all representative government.
- Only natural persons who are citizens may introduce legislation, contribute funds, services or property in support or in opposition to legislative initiatives.
This section is inserted to counter the judicial practice of treating corporations as artificial persons giving them the same rights and privileges as natural persons. This section helps remove the corrupting influence of money in the legislative and electoral process of representative government.
Legislative Procedures Act
This Act becomes part of Korean law but is not an amendment to the Constitution even though it is voted on and enacted into law by the same citizen’s vote for the Korean National Initiative.
Be It Enacted By the Citizens of Korea:
Section 1. TITLE
This act shall be known and may be cited as the Legislative Procedures Act. (Hereinafter the “Act”)
Section 2. PREAMBLE
We, the People of Korea, inherently possess the sovereign authority and power to govern ourselves. We assert this power in Article 1 (2) of our Constitution. We, Citizens, choose now to participate as lawmakers at all levels of government. We, Citizens, herein sanction this Korean National Initiative whereby a group of Citizens introduced the Citizen Assembly Referendum to the Korean electorate for their decision in an election conducted by the Central Election Management Committee. We, Citizens, choose to exercise our legislative powers by initiative concurrently with the legislative powers we delegate to our legislative representatives in all government jurisdictions.
THEREFORE, We, Citizens of Korea, enact this Legislative Procedures Act, establishing procedures to be administered by the Citizens Trust on behalf of the Korean People.
The Preamble is the vital part of any law in that it gives an overview of the reasons for the law and how it is to be implemented. In this case it is a restatement of the first three sections of the Korean National Initiative amendment. Additionally and most importantly, it nominates the Central Election Management Committee, the agency under the Constitution that conducts elections and referenda, to conduct the referendum on the Korean National Initiative. It is my judgment that the Committee will take on this responsibility when it is demonstrated in a national poll that more than 50% of Koreans wish to vote on the Korean National Initiative.
The Therefore clause is the actionable enacting part of the entire law
Section 3. PROCEDURES
The Citizen Trust shall qualify initiatives chronologically. The Citizens Trust shall take advantage of contemporary technology in implementing these procedures. The essential elements of the initiative process include, but are not limited to, the following:
The Citizen Trust chronologically qualifying initiatives removes one of the more mischievous practices of representative government. Politicians generally put party gain above public interest. One source of power for political parties is control of the legislative agenda in legislative bodies. The majority party determines what proposed laws are taken up and how they are amended and when votes are taken. A Citizens Assembly will not be influenced or controlled by political parties, therefore it needs a different way to control the flow of legislation that is automatic, transparent and cannot be corrupted. The flow of legislation in the Citizens Assembly will simply be chronological.
The proposition to the Citizens Trust to take advantage of contemporary technology in implementing the legislative procedures is extremely important, since it is the communication technology of the 21st Century that makes the operation of the Citizens Assembly so feasible. The proposition is purposely general in that there is no way of knowing the technological advances that will be produced in the future. Frequently government officials pin down procedures to specific technologies to satisfy supporters. This can be very counterproductive when those technologies become obsolete, yet the political influence behind the initial decision is still effective to pressure their continued use.
Only citizens of Korea who are registered to vote may sponsor an initiative. The Sponsor shall be identified on the initiative, on any petition, and on any qualifying poll.
An initiative shall comprise a Title, a Summary, a Preamble that states the reasons for, and explains why, the initiative is proposed, and the complete text of the initiative.
The title and summary are important to properly identify the initiative since that in most cases is what the public will read.
An initiative shall pertain to a matter of public policy relevant to the government jurisdiction to which it is applicable. The Sponsor shall determine the wording of the initiative. The Title and Summary shall be subject to the approval of the Citizens Trust.
This is to restrict the introduction of initiatives to subjects that are germane to the proper jurisdiction. The Title and Summary shall be subject to approval by the Citizens Trust to protect the public from sponsors who may choose to mislead by including different material in the body of their initiative.
An initiative shall address one subject only, but may include related or mutually dependent parts.
An abusive legislative devise is to stuff unrelated subjects into a supposedly single subject piece of legislation. The one subject rule safeguards the public from this ruse.
E. Word Limit
An initiative shall contain no more than five thousand words, exclusive of the Title, Preamble, Summary, References, Definitions, and language that quote existing law.
If a law cannot be boiled down to 5000 words then likely the sponsors are trying to confuse and obfuscate their true intentions. To give you a sense of proportion, the Korean National Initiative is about 4000 words.
Following approval of the Title and Summary by the Citizens Trust, an initiative may qualify for election in the relevant government jurisdiction by any one of the following methods:
1) Citizen Petition
An initiative shall qualify for election if it is the subject of a petition signed manually or electronically by a number of registered voters, to be specified by the Citizens Trust, within the relevant government jurisdiction. The time period allotted to gather qualifying petition signatures shall be not more than one year, beginning on the date the first signature is collected.
2) Public Opinion Poll of Citizens
An initiative shall qualify for election if the subject matter described in the title and summary is approved in a public opinion poll by a sufficient number of persons wishing to vote on the measure. To qualify by this method, the affirmative percentage, the polling plan, including the number of respondents, the methodology and the entity that will conduct the poll, shall be approved by the Citizens Trust.
The wording of the poll and the tabulation are paramount to the plan that the Trust must be assured reflect the views of the citizens in the jurisdiction affected by the initiative. 1) and 3) are customarily used to qualify initiatives; however, a poll is less expensive and more accurate.
3) Legislative Resolution
An initiative shall qualify for election if a resolution, the wording of which is identical to the initiative as submitted by its sponsor, is passed by simple majority in the legislative body of the relevant jurisdiction.
The Sponsor of an initiative may withdraw an initiative from further consideration and processing at any time prior to a deadline established by the Citizens Trust.
H. Public Hearing
After an initiative qualifies for election, the Citizens Trust shall appoint a Hearing Officer to conduct a public hearing on the initiative. Representatives of the Sponsor and representatives of the legislative body of the relevant jurisdiction shall participate in the hearing in accordance with policies and procedures established by the Citizens Trust. Testimony on the initiative by citizens, proponents, opponents, and experts shall be solicited and their testimony shall be published as the Hearing Record.
I. Deliberative Committee
After the public hearing on each initiative, the Citizens Trust shall convene a Deliberative Committee to review the initiative. The Deliberative Committee shall consist of citizens selected at random from the voter rolls of the relevant jurisdiction maintained by the Citizens Trust. Members of the Deliberative Committee shall be fairly compensated for time spent and expenses incurred in performance of Committee duties. The Citizens Trust shall provide technical support and such additional resources as are necessary for the effective discharge of the Committee’s duties. The Deliberative Committee shall review the Hearing Record, secure expert advice, deliberate the merits of the initiative, and prepare a written report of its deliberations and recommendations. By two-thirds vote, the Committee may alter the Title, Summary, Preamble or text of the initiative, provided that the changes are consistent with the stated purpose of the initiative.
J. Legislative Advisory Vote
Each initiative, together with its Hearing Record and report of the Deliberative Committee, shall be transmitted to the legislative body of the relevant jurisdiction. The legislative body shall conduct a public vote of its members, recording the yeas and nays on the initiative, within 90 days after receipt thereof. The vote of the legislative body is non-binding, serving only as an advisory to the citizens. Upon the completion of the Legislative Advisory Vote, or 90 days after the initiative has been delivered to the legislative body of relevant jurisdiction, whichever occurs first, the Citizens Trust shall coordinate a schedule for the election of the initiative with the Central Election Management Committee.
Central Election Management Committee shall conduct all initiative elections and employ the most advanced technology, like the Internet, and need not be bound to confining an election to a single day. The Committee may expand an election to twenty four hours a day for a week. The Committee shall be motivated to make voting for initiatives as conveniently as possible for Korean Citizens.
The key innovation in this section is the expansion of an election beyond one day. With today’s technology there is no reason why an election should be confined to a day. The Committee may expand an election to twenty four hours a day for a week. Citizen can then vote by Internet from their computers, by mobile phone and any future device that guarantees the security and privacy of the voter.
An initiative that creates or modifies the Constitution, a provincial or municipal charter assumes the force of law when it is approved by more than half the voters in the relevant jurisdiction in each of two successive elections. If such initiative is approved in the first election, the second election shall occur no earlier than six months and no later than a year after, the first election. An initiative that enacts, modifies or repeals statute law assumes the force of law in the relevant jurisdiction when approved by more than half the registered voters participating in an election.
There are two levels of law: constitutional and statute. The former is primary and should not be changed lightly. But the people are sovereign and should be entitled to change primary law––constitutions and charters––as well as statute law. However it should be made more difficult to change primary law so that citizens can appreciate the importance of their legislative decision. The obvious answer is to have two elections rather than provide for a super majority vote which gives more power to minorities.
M. Effective Date
The effective date of an initiative, if not otherwise specified in the initiative, shall be forty-five days after certification of its enactment.
N. Judicial Review
No court shall have the power to enjoin any initiative election except on grounds of fraud. After an initiative has been enacted into statute law, courts, when requested, may determine the constitutionality of the law. Courts have no power to adjudicate initiatives that amend the Korea Constitution.
The court cannot go into a legislate body and question the legislative process, therefore, absent fraud, it has no authority over the Citizens Assembly.
O. Promotional Communications
Any communication, regardless of the medium through which conveyed, that promotes or opposes an initiative shall conspicuously identify the person(s) responsible for that communication, in a manner specified by the Citizens Trust.
P. Campaign Financing
Only Korea citizens may contribute funds, services or property in support of or in opposition to an initiative. Contributions from corporations including, but not limited to, such incorporated entities as industry groups, labor unions, political parties, political action committees, organized religions and associations, are specifically prohibited. Such entities are also prohibited from coercing or inducing employees, clients, customers, members, or any other associated persons to support or oppose an initiative. Violation of these prohibitions is a felony punishable by not more than one year in prison, or a fine not to exceed One Hundred Thirty Million Won, or both, per instance, applied to each person found guilty of the violation.
This section expands sub-article (5) of the Amendment with specific details who cannot contribute to the initiative process and the penalties for violations.
Q. Financial Disclosure
The Citizens Trust shall establish financial reporting requirements applicable to initiative sponsors, proponents and opponents, with monetary thresholds appropriate to the affected government jurisdiction. The Citizens Trust shall make all financial reports available to the public immediately upon its receipt thereof. Failure of sponsors, proponents or opponents to comply with these reporting requirements shall be a felony punishable by not more than one year in prison or a fine not to exceed One Hundred Thirty Million Won, or both, per instance, applied to each person found guilty of the violation.
This section is vital to maintain transparency. The Citizens Trust demonstrates the importance of the financial reports by establishing severe penalties for failures to report.
Section 4. CITIZENS TRUST
The Citizens Trust shall administer the Legislative Procedures Act. The Citizens Trust shall be governed by a Board of Trustees and a Director. The Citizens Trust shall take advantage of contemporary technology in carrying out its mission. The activities of the Citizens Trust shall be transparent to the public.
Section 4 details the operations of the Citizens Trust and is again pressed to take advantage of contemporary technology in carrying out its mission and maintain transparency.
The Citizens Trust shall impartially administer the Act so as to facilitate the exercise of the citizens’ legislative power. The Citizens Trust shall ensure that citizens may file, qualify and vote on initiatives relevant to any government jurisdiction at any time and from any location. The Citizens Trust shall neither influence the outcome of any initiative, nor alter the substance of any initiative, except as specified in Section 3.I, “Deliberative Committee”.
B. Board of Trustees
The Board of Trustees shall establish policy for and perform oversight of the Citizens Trust.
The Board of Trustees shall include 21 members: one member selected by the legislative body of each of the 8 provinces, one member selected by the legislative body of each of the 10 largest municipalities, one member selected by the National Assembly, one member selected by the President, and one member selected by the Supreme Court.
2) Term of Office
Members of the Board of Trustees shall serve a single term of four years.
3) Removal of Trustees
Any member of the Board of Trustees shall be removed from office upon a three-fourths vote of the full membership of the Board of Trustees. A vacancy on the Board of Trustees shall be filled by same original selection process.
The Board of Trustees shall meet at least annually and at such other times and in such places as it deems appropriate to conduct its business. All meetings of the Board shall be publicized in advance and open to the public, except as required by law. The Citizens Trust shall publish the minutes and video recordings of all meetings of the Board, except as required by law.
The Director of the Citizens Trust is the Chief Executive Officer of the Citizens Trust and is responsible for its day-to-day management and operations, consistent with the policies established by the Board of Trustees.
1) Term of Office
The Director is appointed for a six year term and is limited to one additional six year term. The first director is appointed by the Board of Directors of the non-profit Korean National Initiative Corporation. Subsequent Directors shall be elected by majority of the Board of Trustees.
The reason for the first director is appointed by the Korean National Initiative corporate board is to guaranty that their vision to empower the Korean people continues to play a leadership roll at the beginning of this unusual undertaking.
2) Removal of Director
The Director shall be removed from office upon a vote of two thirds of the membership of the Board of Trustees, or by a majority of the voters participating in a national recall election.
A vacancy in the position of Director shall be filled by majority vote of the full membership of the Board of Trustees.
D. Oath or Affirmation of Office
Each Member of the Board of Trustees, the Interim Board, the Director and each employee of the Citizens Trust shall execute the following oath or affirmation of office as a condition of his or her service: “I, (name), (swear or affirm) that I will, to the best of my ability, defend and uphold the Constitution of the Republic of Korea and the sovereign authority of its Citizens to exercise their legislative power.”
E. Organization and Responsibilities
The Citizens Trust shall staff and organize itself to fulfill its mission and shall develop policies, procedures and regulations to register citizens upon their becoming eligible to vote, to assist sponsors in preparing initiatives for qualification, to process initiatives, to coordinate all elections with the Central Election Management Committee. The Citizens Trust may select and contract for facilities and services, and prescribe staff duties and compensation. The Citizens Trust may also apply for and receive funds, and incur debt when necessary, and shall act in a responsible manner as a fiduciary agency of Citizens.
1) Existing Law
In fulfilling its responsibilities and performing its duties, the Citizens Trust shall comply with applicable laws and regulations of every government jurisdiction of the Republic of Korea in which it operates that do not conflict with its mission defined in Section 4A, “Mission”. Where laws are in conflict, this Act shall supersede.
2) Voter Registration
The Citizens Trust shall develop requirements, facilities and procedures for universal lifetime voter registration for the citizens of Korea which shall be binding in elections conducted under this act.
3) Research and Drafting Service
The Citizens Trust shall establish and operate a legislative research and drafting service to assist citizens in preparing initiatives.
This service is important to guarantee that legislation is properly written and constitutional thereby avoiding costly court challenges. Prospective legislation is researched so as to avoid duplication.
The Citizens Trust shall establish the means, procedures and regulations to facilitate the communication of timely, comprehensive, balanced, and pertinent information on the subject matter of each initiative, which information shall be conveyed to the citizens of the relevant jurisdiction by various media, including radio, television, print, and the Internet and/or other electronic media. The Citizens Trust shall establish and maintain a web site for each qualified initiative that will contain, at a minimum, a summary of the Hearing Record, the report of the Deliberative Committee, the result of the Legislative Advisory Vote, statements prepared by the Sponsor, other proponents and opponents, and a balanced analysis prepared by the Citizens Trust of the pros and cons of the initiative, its societal, environmental, and economic implications, costs and benefits.
This level of information guarantees that regardless how much money is spent for or against an initiative the citizen will have sufficient information to make an objective informed vote.
5) Hearings and Deliberative Committees
The Citizens Trust shall organize a Hearing to receive testimony and shall convene a Deliberative Committee to deliberate on each qualified initiative. The Citizens Trust shall provide or arrange for professional Hearing Officers and Deliberation Facilitators, technical consultants and support staff and facilities as needed for the effective conduct of Hearings and Committee activities.
Both these activities are customary to most legislative bodies and are vital to the lawmaking process.
The Citizens Trust shall coordinate with the Central Election Management Committee to devise and administer policies and procedures for the proper conduct of initiative elections. In doing so, it shall take advantage of contemporary technology in agreeing to procedures for voting and validating votes. All such policies and procedures shall be neutral with respect to the content of initiatives, their administration and the outcomes of elections.
Korea has an advantage in already having a non-partisan election authority experienced in conducting elections. It will be easy for it to adapt to the frequency of initiative elections.
The Citizens Trust may promulgate regulations to more fully meet its responsibilities under this Act.
Budgets covering all elements of the Citizens Trust’s operations and activities shall be prepared and published consistent with government practices and the public nature of the Citizens Trust’s responsibilities.
Section 5. APPROPRIATIONS
Citizens hereby authorize the appropriation of funds from the Treasury of the Republic of Korea, pursuant to existing law to enable the Citizens Trust to organize itself, repay debts herein described, and begin the performance of its duties. Debts to be repaid under this Section are those incurred by the Korean National Initiative, the proceeds of which were used to pay the costs of preparing educational and promotional materials about the Citizens Assembly, which costs shall include, but shall not be limited to, the production cost of printing, mail, print and electronic communications, including the Internet, and related costs such as legal and accounting, all of which shall have been audited and certified as bona fide by the Citizens Trust prior to repayment. Hereafter, appropriations shall be made annually to the Citizens Trust as an independent agency of the Korea Government.
Funding for the Trust follows normal government channels. The clause authorizing the repayment of loans the Korean National Initiative corporation is designed to help the corporation secure loans to prosecute the campaign to enact the Korean National Initiative.
Section 6. SEVERABILITY
In the event that any one or more of the provisions of this Act shall for any reason be held to be invalid as a result of judicial action, the remaining provisions of this Act shall be unimpaired.
This is standard legal text in case of error.
Section 7. ENACTMENT BY CITIZENS OF THE REPUBLIC OF KOREA
The Korean National Initiative presents to the citizens of the Republic of Korea for their legislative decision in an election conducted by Central Election Management Committee this measure on the enactment of Article 131 [Citizens Assembly] of Chapter X Amendments to the Constitution and the companion Legislative Procedures Act. The Amendment shall have been ratified and the Act enacted when a majority of voters vote affirmatively.
This section states the trigger of enactment: a majority of affirmative votes.
Section 8. DEFINITIONS
The definition of terms is provided to facilitate understanding by the courts, legislators, and citizens of the intent of the Citizens Assembly amendment and the Legislative Procedures Act.
Written by Mike Gravel, March 2009