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Jongcheol Kim
made for other remaining electoral reforms by reviewing more strictly election
related laws.
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11.4.4. Political Reactions and Implications
in Relation to the Role of the KCC
For the sake of foreign readers who do not have enough background of Korean
society, I would like to add some background explanations, especially in regard
to the first two cases concluded in the same year, 2004.
Although these cases provided a good opportunity for the KCC to represent
its ambition to be a constitutional coordinator, it is true that their political
outcomes polarized Korean society and thereby the raison d’être of the KCC
became vulnerable to popular opinion. In the impeachment case which,
as a matter of fact, was the first impeachment trial against the president in
Korean modern history since its formal establishment as a new Republic
in 1948, the KCC attempted to get into the middle ground of the political
spectrum by trying to make both supporters and opponents on the issue of
impeachment of President Roh satisfied. Its conclusion in refusing to remove
him from office might have relieved his supporters while it tried to amuse
the other side, recognizing President Roh’s constitutional and legal violations
on three counts and stating some warnings to the President. However, the
KCC’s seemingly ambivalent ruling, on the one hand, drew fierce criticism
from “the Old Forces” who have had vested interests for more than sixty years
in Korean Society, in the sense that a group of social forces have had a very
vital influence on the allocation of political, social, cultural, and economic
resources, and on opinion formation in Korean society. On the other hand,
it was respected as the bastion of democracy by “the New Forces” who have
driven political and social reforms challenging the Old Forces’ continuous
ruling of Korean society.
The political reaction about the KCC’s ruling in the relocation of the cap-
ital city case was exactly the reverse of the impeachment case. The KCC’s
ruling that the Construction of the New Administrative Capital Act 2004
encroached upon the people’s constitutional right of referendum by relocat-
ing the capital without the direct consent of the people was welcomed by
the Old Forces which have strong economic and social assets in the present
capital, Seoul. However, the New Forces, believing that the relocation of the
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The National Assembly is endowed with comprehensive legislative power, especially in
relation to the electoral system, by Article 41 of the Constitution, especially those parties
with vested interests in the current system that have been criticized for their ignorance of or
reluctance to support electoral reform.
Is the Invisible Constitution Really Invisible?
341
capital is a key tool in a decentralization project crucial to dismantle the social
base of the Old Forces and distribute social recourse centralized in Seoul area
across the nation, attacked the KCC as a destructor of the Constitution mainly
because the KCC’s decision made it almost impossible to move the capital by
using a very controversial conception of customary constitution.
This roller coaster public reaction toward the KCC in 2004 has not changed
very much and remains even today. This situation has ambivalent anticipa-
tions. On the one hand, constitutional dialogue is becoming institutionalized
gradually in Korean society, whereas in the past the overwhelming political
influence put inroads to a constructive dialogue. On the other, it can show
the uncertain status of the KCC in the constitutional arrangements, so that
if constitutional amendment movements can get enough support from the
people and political elite, it could suddenly be abolished and its powers trans-
ferred to the Supreme Court.
41
Which outcome is realized will depend upon
the sovereign people’s evaluation on how the KCC performs its designated
role as a constitutional bastion of democracy and human rights. The third
case study on the electoral reapportionment case may be a good example of
the desirable role of the KCC, because its activist approach in these cases has
been admired as enhancing democracy and political equality in Korea. If the
KCC continues to perform this self-imposed function properly, its role as a
constitutional coordinator in constitutional dialogue will be well established
in Korean constitutional arrangements.
11.5. Concluding Remarks
In the process of implementing constitutional functions, it is inevitable that
the constitutional actors, including public authorities, refer to some consti-
tutional propositions established by its own precedents, or by guidance from
41
During the revision period of this chapter, Korea experienced a dynamic political change.
In the wake of a series of “candlelight protests” joined by more than 16 million people since
late October 2016, President Park Geun Hye was finally impeached by the judgment of the
KCC on March 10. On May 9, a new presidential election took place and the newly elected
President Moon Jae In and the National Assembly agreed to amend the constitution until
mid-June 2018. During this dramatic political change, the KCC has gained strong support
from the general public and it is highly likely that the KCC will remain as an independent
constitutional institution in the amended constitutional arrangements. And it is worthwhile to
mention that the first presidential impeachment was accomplished through the harmonized
combination of “unofficial” or “deinstitutionalized” will-formation of candlelight citizens and
“official” or “institutionalized” constitutional processes of impeachment on the parts of the
National Assembly and the KCC. This experience that may be called a “candlelight revolu-
tion,” may contribute to the upgrading of the mechanism of constitutional dialogue among
constitutional actors in Korean society.
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