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Jongcheol Kim
The majority of the KCC needed further twists to carry out the self-imposed
task to strike down the Act at issue completely, because the recognition of a
customary constitution itself is not enough to find the violation of an individu-
al’s constitutional rights, a legal requirement in the constitutional complaints
procedure. For that purpose, further reasoning on two counts are required.
First, the question why the fact that Seoul has been the capital should become
the norm with which the legislator is supposed to comply must be answered.
Second, even if the first question were to be answered properly, there should
be another requirement to meet, i.e., a violation of an individual’s constitu-
tional rights to make the Act at issue invalidated.
The majority opined on the first question as follows:
that Seoul is the capital of our nation has been a given normative fact con-
cerning the nation for over six-hundred (600) years since the Chosun period
as the meaning of the word Seoul also indicates, therefore it can be estimated
as a continuing convention practice traditionally formed in the nation (con-
tinuance); such practice has never been interrupted in the continuum as it
has existed in actuality for a long period of time without change (maintaina-
bility); the fact that Seoul is the capital has a clear meaning to the extent that
none among the citizens of our nation would hold a different opinion over it
individually (unequivocalness); and, further, such practice is a basic element
of the nation in whose effectiveness and enforceability the citizens believe, by
obtaining the approval and the wide consensus of the citizens through firm
establishment over a long period of time (national consensus). Therefore,
that Seoul is the capital is part of the unwritten constitution established in
the form of customary constitutional law, as it is a customary constitutional
law that has traditionally existed since prior to our written constitution, and
is a norm that is self-evident and presupposed in the constitution notwith-
standing the absence of an express constitutional provision indicating this.
25
I am still unsatisfied with the majority’s reasoning that the fact that Seoul has
been regarded as the capital in Korean history is a “dormancy of its normative
nature behind the factual proposition.” There is plenty of counter-evidence
from various perspectives challenging its assertion that the factual proposition
met even the elements of customary constitutional law. However, the cru-
cial argument showing the inconsistency of the majority is the majority’s final
step to meet the formal requirement of the constitutional complaints, i.e.,
the recognition of the violation of a citizen’s right to vote on a referendum.
25
Constitutional Court Decision 2004Hun-Ma554, October 21, 2004, 16–1(B) KCCR 1(English
translation by KCC), available at
http://english.ccourt.go.kr/cckhome/eng/decisions/majorde-
cisions/majorDetail.do
(last accessed on July 20, 2017).
Is the Invisible Constitution Really Invisible?
333
The majority moved on to the argument that even a customary constitution
as an unwritten constitution can be revised only by way of the constitutional
revision process of the written constitution. It said that
[In] the case of our constitutional law, Articles 128 through 130 under Chapter
10 of the Constitution set forth a strict procedure for the constitutional revi-
sion that is different from the revision procedure for general statutes, and
such constitutional revision procedures designates its object merely as the
“constitution.” Therefore, as long as customary constitutional law constitutes
part of the constitution, it is within the meaning of the constitution that is
the object of the constitutional revision procedure referred to here. Then,
in order to eliminate the customary constitutional law that the capital of our
nation is Seoul, constitutional revision pursuant to the procedure set forth by
the Constitution is mandatory.
The logical consequence of this proposition is that even though the people
may have the right to choose in which form they constitute the constitution,
written or unwritten, as far as revision of the constitution is concerned, there is
no right to choose the procedure as they wish but the duty to comply with the
revision procedure of the written constitution. Upon a quick glance, the rea-
soning on this part seems to be very logical. However, if the true nature of the
revision procedure in the Constitution is recognized, the majority’s hindsight
can be unveiled. Constitutional revision clauses require both the concurrent
votes of two-thirds or more of the total members of the National Assembly,
with the determination confirmed by more than one-half of all votes cast by
more than one-half of the voters eligible to vote in elections for members of
the National Assembly. Therefore, the natural consequence of the majority
opinion is that only one-third of the total number of the National Assembly
can block the transfer of the capital. Then, we can finally realize how feeble it
is that the constitutional status of the customary constitution can be justified
by the “visible” principle of the people’s sovereignty. Ironically enough, they
held that the people themselves are not entitled to change, if any, a customary
constitution and therefore should be subject to the will of minority represent-
atives, instead of a majority, while the formation of a customary constitution
can be done only by the will of the people. Is this what the invisible constitu-
tion is intended to be or should it play a role in constitutional discourse?
In my opinion, the proper role of the KCC in this case was not to intervene
in a typically political issue, considering that there is no explicit provision con-
cerning the capital or its relocation. To be faithful to the ideal of constitutional
democracy, the KCC should have held that it might be more desirable for
social integration to allow civic participation in the decision-making process
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