hankyoreh

The Constitutional Court of Korea

A positive public response to the ruling Democratic Party’s plan for relocating South Korea’s administrative capital as a measure to resolve real estate issues is attracting growing interest in whether the constitutional issues that thwarted a similar plan 16 years ago can be resolved this time.

On Oct. 21, 2004, the Constitutional Court issued a decision in an appeal concerning the Special Measures Act for Construction of a New Administrative Capital, which served as a legal basis for the capital’s relocation. In an eight-to-one decision, the court found the act unconstitutional, stating that because Seoul’s status as South Korea’s capital was part of the “customary constitution,” its abolition would “need to follow constitutional amendment procedures.”

The gist of the ruling was that even though the Korean Constitution does not explicitly state that Seoul is South Korea’s capital, the fact that South Koreans recognize it in practice as the capital meant that it should be regarded as part of the “customary constitution” on par with the actual constitution, and any alteration would need to be subject to a national referendum. The decision faced much criticism in the constitutional scholarship community at the time, with its insistence on defending Seoul’s status as the capital based on the existence of a “customary constitution” in South Korea, which has an unambiguous written Constitution. The only dissenting opinion was from former Constitutional Court Justice Jeon Hyo-sook, who argued, “The customary constitution is only valid as a supplement to the written Constitution, and there is no basis for its being recognized as having equal validity to the written Constitution.”

Jeon also said, “Since there are no constitutional regulations restricting alterations of the ‘customary constitution’ such as the relocation of the capital, this would be possible through National Assembly legislation.” The Constitutional Court’s decision forced the Roh Moo-hyun administration to revise its plan to the relocation of only a portion of administrative agencies -- not including the Blue House or National Assembly. In July 2012, Sejong Special Self-Governing City was established as a multifunctional administrative city.

If another administrative capital relocation bill like the Roh administration’s is pursued and a constitutionality appeal is submitted, at least six of the court’s justices would have to agree on its constitutionality, since it would represent a case of “altering a previous Constitutional Court ruling concerning interpretation of the law.” Of the current justices, President Yoo Nam-seok, Lee Mi-son, and Moon Hyung-baek were nominated by President Moon Jae-in; Lee Eun-ae and Lee Suk-tae by Supreme Court Chief Justice Kim Myeong-su; and Kim Ki-young by the Democratic Party, for a total of six. This suggests a relatively greater possibility of a more progressive decision on the administrative capital relocation issue than under the 2004 Constitutional Court, where not a single justice had been appointed by Roh.

Some analysts are suggesting that the constitutionality questions can be put to bed relatively easy based on the court’s majority decision in 2004, as well as the lone dissenting opinion from Jeon. At the time, the majority decision cited the conditions for recognition of a “customary constitution” as being repetition, continuity, permanence, clarity, and national consensus. On this basis, it argued that it represented a fracturing of the national consensus on the customary constitution for a newly formed National Assembly representing the public to declare plans to relocate the administrative capital through an amendment of the law.

“Quite apart from questions of the political landscape or opinions at the time, the ‘customary constitution theory’ faced the most criticism in both Constitutional scholarship and jurisprudence terms since the Constitutional Court was established,” said an attorney and former Constitutional Court researcher in a July 23 telephone interview with the Hankyoreh.

“There are enough research reports from the time that it would not take much time for the Constitutional Court to produce a decision if a similar situation arises to what happened in 2004,” the attorney suggested.

By Jang Pil-su and Kim Jeong-pil, staff reporters

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