Dec 26, 2007

What to Be Thankful For

What to Be Thankful For
By Sean Hayes

Appeared in the Korea Times on Dec. 27, 2007

Christmas is a time of giving. So we should all give thanks that we live in one of the world's great nations.

I often criticize Korea, in these very pages and elsewhere, for not fully protecting freedoms, favoring the vested elite, excessively taxing, creating and fostering a bloated inefficient bureaucracy, and over-regulating.

My cynical nature often gets the best of me. Korea is a great nation where those shortcomings are not as serious as in many parts of the world. Korea, in only a handful of decades, is a nation that has overcome a horrific war, demoralizing poverty, and brutal dictators to become one of the models for economic success in Asia.

Korea has also been moving in the direction of becoming, not in name only, a constitutional democracy.

However, don't fret, I will continue, in the upcoming year, to criticize shortcomings, while hopefully balancing my inherent cynicism with a few mentions of hopeful developments.

So for this past year here are a few of things that I am thankful for.

Freedom of Speech and Press

In many places of the world, citizens, and of course foreigners residing in these countries, would not be able to criticize government in a local newspaper. In many parts of Asia, Africa, and the Middle East this type of column could place me in jail or lead to my deportation.

I have never feared that my writings will lead me to any difficulties in my life in Korea even when I criticize the very institutions that I owe my livelihood to.

Rule of Law

Korea has subordinated most of its power to law. Korea's constitutional democracy has created mechanisms, including the Constitutional Court, to help guarantee that the government will not act arbitrarily.

No longer can kings, the vested elite, government officials, and the like take residents' life, liberty, or property arbitrarily. Also, increasingly, the vested elite is being treated in a similar manner as the people. No longer can they rely on their power to avoid difficulties.

Capitalism

Korea has fostered the capitalist spirit. I owe my paycheck, the apartment I live in, the streets that I drive on, the health care system that I may employ, and the abundance of food that I consume, to the capitalist freedoms that allow private ownership of property and free markets.

The private ownership of property coupled with the ability to contract creates the incentive to create more wealth. Korea is a role model, in Asia, for the successful implementation of a capitalist market system.

Equality

For most of the world's history we have created castes and strictly assigned individuals to certain castes. Korea was no exception. Article 11 of the Korean Constitution guarantees equality and the Constitutional Court and in recent years the Human Rights Commission has been willing to fight for equal protection for all.

The Constitutional Court has made numerous rulings striking down laws that discriminate against women and the Human Rights Commission has been actively promoting the rights of foreigners, the disabled, and women.

We should all be thankful and realize that without the freedom of speech and press, the rule of law, capitalism, and respect for equality many Korean would choose to forgo the Korean system and many foreigners would choose to remain in their home countries.

We all know Korea and the rest of the world are facing many difficulties, but we should also be thankful that in Korea we are living decent lives because of the willingness of Korea to protect and foster our rights and liberties, promote democracy, and maintain the rule of law.

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SeanHayes@ipglegal.com

Dec 18, 2007

Impeachment Standard in Korea

Impeachment Standard in Korea
Appeared in the Korea Times on Decemebr 13, 2007

Dear Sean: A liberal party has initiated impeachment articles against three prosecutors. I remember reading an article about how impeachment occurs in Korea, but I can seem to find it. How can a government official, like a prosecutor, be impeached in Korea? Allen in Itaewon.

Dear Allen: The question brings to light the unique way that impeachment is handled in Korea. In Korea, as in many countries, impeachment begins by a vote in the legislature; however, Korea is unique in that the Constitutional Court is given power over removal.

Article 65 states that if "the President, the Prime Minister, members of the State Council, heads of Executive Ministries, Justices of the Constitutional Court, judges, members of the National Election Commission, the Chairman and members of the Board of Audit and Inspection, and other public officials designated by the Act have violated the Constitution or other Acts in the performance of official duties, the National Assembly may pass motions for their impeachment."

The motion of impeachment must be proposed by at least one third of the total members of the National Assembly and requires a concurrent vote of at least a majority of the total members of the National Assembly for passage. In contrast, to remove the president at least a majority of the total members of the National Assembly must propose and at least two thirds of the total members must vote for the motion.

After passage of the motion six votes at the Constitutional Court are needed to remove the officer from his office.

The most interesting issue is the standard employed by the Court. Article 53 (1) of the Constitutional Court Act provides that ``when there is a valid ground for the petition for impeachment adjudication, the Constitutional Court shall issue a decision removing the respondent from office.''

The court, in the impeachment of President Roh, refused to interpret the clause literally and thus proclaimed that ``minor violations'' cannot result in impeachment, since minor violation leading to removal may lead to an offense to ``the request that punishment under the Constitution proportionally correspond to the obligation owed by respondent, that is, the principal of proportionality.''

Thus, the court noted that government officials, subject to impeachment adjudication could only be removed for ``grave violations.'' The court noted that ``grave violations'' will be interpreted by the court by ``balancing the degree of negative impact on or the harm to the constitutional order caused by the violation of the law and the effect to be caused by the removal of the respondent from office.''

The impeachment motion will not be passed, but if it is, because of the standard and more importantly the total lack of evidence the court will not remove the prosecutors.

_____
SeanHayes@ipglegal.com

Speech Dilemma

Speech Dilemma
By Sean Hayes

Appeared in the Korea Times on Dec. 11, 2007


An American investigative news program, 20/20, aired a report that sheds light on the dark side of free speech in America and the difference in the treatment of speech in America vs. Korea.

The report featured a couple of stories concerning the perils of free speech. One of the stories concerned the 18-year-old daughter of Christos and Lesli Catsouras who died in a gruesome car accident.

Pictures of the accident reached the public and promptly the Catsouras received anonymous e-mails and text messages that contained the photographs of the accident. One photo included the picture of the 18-year-old daughter's decapitated and mangled body in the crumpled remains of the automobile.

A fake MySpace page was even created, which at first looked like a tribute to Catsouras, but quickly redirected to the ghastly pictures. The father, a real estate agent, received mail disguised as sales leads that also included the gruesome photos.

Another story concerned a psychologically fragile 13-year-old girl who committed suicide after having a long-term strictly online friendship with 16-year-old boy who was later found to actually be a school girlfriend that had a profound hate for the girl.

The school friend, disguised as the 16-year-old boy, was very friendly to the girl frequently telling her that she had beautiful eyes and a nice smile, but later, on her birthday, drastically changed his attitude and cut off the friendship with postings, e-mails, and messages calling the girl a ``fat ass" a ``whore" and that the ``world would be better off without her." The same day the girl hung herself in the closet

In Korea, the prosecution would likely prosecute and a judge would likely convict the wrongdoers in these cases. In the U.S. these evils acts will go unpunished. The dichotomy stems fundamentally from the different attitude towards speech, the right to privacy, and public morals.

Article 21(4) of the Korean Constitution states that ``Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics." This limitation on the general right to speech and press, it is argued, allows the criminal punishment for even speech that is truthful.

The Korean Constitution, facially, balances the rights to free speech versus the privacy rights of the individual and public mores and social ethics. This inherent balance creates less protection for the freedom of speech than in the United States.

The First Amendment to the United States Constitution provides the protection for free speech. The First Amendment states that: ``Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

This Amendment has been interpreted as creating the near absolute level of protection for the freedom of speech. Justice Cardozo in Palko v. Connecticut states the reason in the United States for the near absolute protection of free speech.

Free speech is a ``fundamental" liberty, in part, because ``our history, political and legal," recognized ``freedom of thought and speech" as ``the indispensable condition of nearly every other form of freedom."

The conception is that the right to free speech is the very foundation of American society and without the right to free speech and free press other freedoms are necessarily inhibited. Thus, in the U.S. we place speech as the top in the hierarchy of rights and thus a balance between competing rights, usually, prevails in favor of speech

The best solution to this ``speech dilemma" I can't pretend to solve.

However, I believe most of us in America would rather hear of these terrible stories than have the government choose if speech violates ``the honor or rights of other persons" or ``undermine public morals or social ethics," since the government often gets its wrong, will use these balances to protect the interests of the vested elite, and will enforce law punishing speech in an inconsistent and in personally beneficial manner.

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SeanHayes@ipglegal.com

Brave New Judiciary

Brave New Judiciary

By Sean Hayes

Appeared in the Korea Times on December 19, 2007

Korea is presently preparing for the adoption of a jury system. The system will allow jurors to give an ``advisory opinion'' to the presiding judge.

After speaking to many judges and other legal professionals most believe that it is unlikely that a judge, except in the most extraordinary of cases, will stray from the decision of the jury. This may be attributable to the keen attention jury cases will receive in the media.

The system is a great step in the right direction and will play a significant role in: (1) acting as a check on government, (2) increasing civil participation, (3) promoting judicial independence, and (4) fostering more factually accurate decisions.

Check on Government

The renowned American Supreme Court Justice Byron White stated that, ``The jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power ― a reluctance to entrust plenary powers over life and liberty of the citizens to one judge or to a group of judges."

This American concern is increasingly becoming a concern for the Korean people. Often the Korean people believe that judges are too young, lack real world experience, and are incapable and sometimes unwilling, in certain cases, to decide based on their true ``free will.''

Thus, many NGOs have pushed to have jury trials in order to strip the prosecutor of the near absolute power to receive a conviction.

Civil Participation

Juries also promote participatory democracy and self-government by allowing the general population the opportunity to participate in the judicial process. A few years back Russia adopted a jury system since it believed that it needed to restore the public's confidence in the judicial system. This is the main, facial, reason why Korea is adopting the system.

Judicial Independence

A judge often comes under pressure from the population, more senior judges and ex-judges, law firms and the media. This pressure may eschew the outcome of a case and may also lead to a perceived destruction of the independence of the judiciary.

U.S. Federal Judge William Schwarzer has noted that, ``Even under the best of circumstances, a single judge making an unpopular decision comes under public and sometimes official criticism that may have adverse effects on his person, his family and his career.''

``Juries, being anonymous and out of the public eye as soon as the case is over, are well suited to decide controversial cases that could be difficult for judges to decide. And because they hold no office, have no other continuing connection with the government and have no political ambition, they are genuinely independent."

Factual Accuracy

A study by Dean Barnlund, on group dynamics, tested university students on their syllogistic reasoning skills. Barnlund paired the best individual reasoners singly against groups of the poorest reasoners.

When it came to dealing with syllogisms whose premises and conclusions were statements that created strong feelings and value preferences such as issues about communism, college school rules and unpopular wars, the best individuals did worse when pitted against the groups of the poor reasoners.

The explanation of the reason for this stems from the premise that an individual or very small group is misled by their emotional responses. The larger group is misled also, but the group, as a whole, was able to straighten itself out. The misled in the group were corrected or balanced out by others who had a different reaction.

Another study concluded by the preeminent legal scientist Fred Strodtbeck that the most important issue in finding the truth in a case is not education, but diversity.

The problem, he found, is that those that were judges lacked a sufficiently diverse social background because of their high level of education and high social status that they were more likely to come to an inaccurate conclusion compared to a jury with socially diverse individuals.

We should congratulate and welcome this brave step by the judiciary.

_____
SeanHayes@ipglegal.com

Dec 10, 2007

Education: Race to the Bottom

Education: Race to the Bottom

By Sean Hayes
Appeared in the Korea Times on 12/04/07

The Seoul government has finally realized that competition in education is not a bad thing. The present ``equality'' driven educational system has created a mere race to the bottom, while competition naturally leads to a race to the top.

Competition in all fields is natural and should be encouraged. The present system of assigning students to school based on a lottery and location creates the same problem as a business monopoly.

A monopoly will naturally provide a bad product, since there is little incentive to provide a good product. However, when the monopoly is broken by competition, the consumers will exercise their judgment in choosing the best product, thus forcing the former monopoly to provide a better product.

We must all remember the importance of the product at issue. Education is the very foundation of modern society. A good education imparts morality, culture, develops the ability to create and think, and allows the exploration of information that is needed to become productive adults and citizens.

However, parents realize that the Korean educational system has failed them and accordingly often choose to totally forego the Korean educational system by sending their children to foreign schools or to supplement formal education by after school education.

This is reflected in numerous statistics. The government spends 3.4 percent of gross domestic product (GDP) on education, while parents spend an additional 3 percent.

It is also estimated that parents spend about 20 percent of their monthly income on education for their children.

Realizing this problem, the Seoul government, from 2010, will allow students and parents to choose which high schools to apply to.

Younghoon High School is preparing for this change. They recently held a promotional event for students and parents. The event, as reported in this paper, was to showcase their unique educational environment, volunteer programs, and overseas study programs.

At present, most high schools are chosen for students based on their place of residence and a lottery system.

However, this step in the right direction does not go far enough. In a highly bureaucratized system with a powerful bureaucracy, an entrenched teachers' union, and a political system that is either incapable or unwilling to combat the system an expedient way to drastically change the very nature of education is to create and foster ``true'' private schools.

In Korea, most schools, public and private, are regulated to such an extent that they are a mere extension of the Korean government. This bureaucratizing of education has created the very race to the bottom we are all trying to lose.

In this system, few schools compete for students thus creating a system that is not rewarding schools for the quality of their educational product, but simply for their location and ability to abide by government mandates ― mandates that overwhelming have failed our students.

Hence, we must liberate our schools by allowing them to educate our students with the schools dictating who, what, when, where, and how including the price to charge, the teachers to hire, the curriculum to teach, and the students to choose.

The schools that are providing a superior educational product will rise to the top and the schools that wish to maintain the status quo will fail. This system may also provide an impetus for public schools to strive for excellence, since they too would need to compete for students.

In the U.S. research by Harvard economist Caroline Minter Hoxby indicates that incentive-based reforms have had greater success than changing the rules or increasing resources.

According too her study greater choice leads to higher student test scores, higher graduation rates and lower per-student spending.

Lets free our schools by allowing them to race to the top.

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SeanHayes@ipglegal.com