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Jongcheol Kim
or abeyance. If there are no explicit provisions on the matters of constitu-
tional implication and thus there is room for critical constitutional construc-
tion, what may be called an invisible constitution may turn up to resolve the
deadlock. For example, the Korean Constitution remains silent on the term
of the President of the Korean Constitutional Court (KCC), while it has a
provision for the term of constitutional justices (Article 112 Paragraph 1 gives
them a term of six years with the possibility of reappointment), as well as a
process of appointment; (Article 111 Paragraph 4 states that “The president of
the Constitutional Court shall be appointed by the President from among the
Justices with the consent of the National Assembly”), which is too vague to
avoid political conflict. If a new president of the KCC is to be appointed from
among the incumbent justices, there would be at least two options to deter-
mine their term as the president. The first option is to make them serve for
the remaining term as a constitutional justice. The second is to provide a new
six-year term assuming they are newly appointed as a constitutional justice
on a different legal basis. Until an explicit law concerning this constitutional
omission is made, the key to resolve this problem may lie in the hands of the
appointers designated by the constitution, i.e., the President and the National
Assembly and/or the justice in that situation. The fifth president of the KCC,
Park Han-Chul, was appointed as the president in 2013 during his term as a
justice since his appointment to that position in 2011. His case was the first in
the history of the KCC, as his predecessors had been appointed at the same
time as their appointment as a justice. As he retired on January 31, 2017 when
his term as a justice came to the end, we may now say a new constitutional
convention is evolving. It means that the space for invisible constitution can
be mostly found in what Dicey called the “conventions of the constitution”
rather than the law of the constitution.
11.3. Argument Two: The Importance of Constitutional
Dialogue and the Political Character
of Constitutional Adjudication
Having said that the ideal of constitutional democracy rather than its appear-
ance matters in constitutional discourse, what comes next would be the ques-
tions of how the constitution ought to evolve on the one hand and, on the
other, how it actually does.
Both questions are separate but interrelated, because they can interact with
each other. In answering these questions, it is important to see who is entitled
to take part in this constitutional discourse. Under the ideal of constitutional
democracy, not only the representative authorities of the state, but also the
Is the Invisible Constitution Really Invisible?
327
people who are the sovereign authority should be regarded as constitutional
actors. The role of the people as constitutional actors is not direct but indirect,
in the sense that in terms of “legal” principle they cannot change the deci-
sions of their representatives. However, their involvement in constitutional
discourse is very important in that in terms of “constitutional” principles their
will should be sovereign in finalizing constitutional conflicts. The decisions,
even the judicial decisions in specific cases, cannot be final in a broader sense
since they should be politically reviewed by the sovereign people. Of course,
this does not mean that the people may overturn specific decisions of their
representatives. It means that the will of the people will affect the fate of those
decisions by influencing changes in the law, including constitutional interpre-
tation in the end. Furthermore, even the will of the people is not omnipres-
ent. The common ground for desirable constitutional discourse would be that
all the actors should be supposed to accept the normative boundary within
which the discourse or dialogue among them takes place.
20
Put differently, a constitutional discourse is by nature a political process,
in the sense that as far as they are within the constitutional boundary they
are entitled to decide freely what to do. But “political” is not meant to be
equated with “partisan.” Constitutional adjudication is one of the important
areas where political decision-making takes place. It is important in constitu-
tional discourse not only because it is a designated place for that purpose by
the constitution itself in most contemporary constitutional democracies, but
also because its own function is involved directly with the determination of
what the constitution does or says or how to draw a line between what is con-
stitutional and unconstitutional, regardless of whether they are based upon
either a visible or invisible constitution. However, whatever important roles
the judges or the adjudicating bodies may assume, they should be open to the
political review of other constitutional actors, including the sovereign people.
Therefore, they should be very cautious not to override the constitutional
boundary that commands self-limitation on the part of all the constitutional
actors, as well as checks and balances among competing actors. The guidance
of self-limitation is the ideal of constitutional democracy: whether or not their
decisions are compatible with the explicit texts, histories, and objectives of
the constitution. More concretely, in constitutional adjudication, they should
make sure that their decisions contribute to the protection of human rights
and the democratic basic order, or otherwise it may devalue constitutionalism
20
In this regard, we may be helped from the insightful ideas of Habermas. See Jürgen Habermas,
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