William Rehg (Cambridge, MA: MIT Press, 1996).
328
Jongcheol Kim
just by endorsing political decisions of other actors. Furthermore, in adjudi-
cating constitutional cases they should not be hindered by their partisan hind-
sight, but should do their best to keep logical consistency and persuasiveness
in their reasoning.
21
11.4. Some Reflections on Invisible or Visible
Constitutions in Korean Constitutional Cases
Now we seem to be ready to examine some constitutional adjudication
cases delivered by the KCC from the angle of the “invisible” constitution in
Tribe’s terminology (or “visible” but “unwritten” constitution based on the
ideal of constitutional democracy). I am going to review three cases which
have had a vital influence on the political structure: the Capital relocation
case; the presidential impeachment case; and the election reapportion-
ment case. The first two cases heard in 2004 can be seen as a watershed in
the Korean history of constitutional review. They were in reality the result of
political strife between the then President Roh Moo Hyun and the opposi-
tion parties. The first case was the KCC’s invalidation of the Construction of
the New Administrative Capital Act that was a top priority in the political
agenda of the Roh Government. The second case was the KCC’s ruling
turning down the National Assembly’s impeachment against President Roh who
had been alleged to intervene illegally in the parliamentary election in 2004.
The last case is the most recent case in a series of the same kind, though
the rule made by the KCC has been changed step by step. This case forced
the National Assembly to change the election alignment which affects the
distribution of political power among territorial regions.
By playing a crucial role in these three constitutional crises, the KCC was
eager to represent its ambitious intention to become the final constructor of
the Constitution and a constitutional coordinator controlling political con-
flicts. The task before us is to ask if it, fulfilling the virtue of self-limitation,
complied with the required constitutional command not to override the
constitutional boundary, although in principle I am sympathetic to such a
conception of the KCC. My hypothesis is that the first case yielded a wrong
decision, defying their constitutional obligation to respect the constitutionally
ordained legislative power, while the remaining two cases contributed to the
21
See Jongcheol Kim and Jonghyun Park, “Causes and Conditions for Sustainable Judicializa-
tion of Politics in Korea” in Björn Dressel (ed.),
The Judicialization of Politics in Asia (Oxford:
Routledge, 2012) ch. 3.
Is the Invisible Constitution Really Invisible?
329
enhancement of Korean constitutionalism by not automatically deferring to
the policy choices made by the legislature.
11.4.1. Sagas of “Customary Constitution” in the
Relocation of the Capital City Case
In the sixteenth presidential election in 2002, a controversial issue divid-
ing major presidential contenders was the plan to construct an adminis-
trative capital in which the office and residence of the President (the Blue
House) and major governmental ministries would be relocated from Seoul
to Choongcheong Province in order to enhance decentralization. Roh Moo
Hyun, who endorsed the plan as one of his top pledges, finally won the elec-
tion and initiated the plan to be put into practice by proposing a Special Bill
on the Construction of the New Administrative Capital. The Bill was passed
and promulgated in the wake of fierce political controversies in early 2004.
A number of citizens who were unsatisfied with the plan, including the then
Mayor of Seoul Lee Myong Bak (the seventeenth president succeeding Roh),
organized an anti-relocation-of-the capital movement. Some of the dissenters
brought their complaints before the KCC, alleging that the Special Act was
unconstitutional because it violated their constitutional right to vote on a ref-
erendum allegedly required by the Constitution and other constitutional rights,
including the right to property, the right to become civil servants, and so on.
The KCC accepted the complaints in an eight to one majority decision.
22
The main thrusts of the majority opinion were fourfold. First, the relocation of
the capital is a core constitutional matter that forms a requisite element of the
Constitution. Second, although “Seoul is the capital” is not expressly stated in
the written constitution, the fact becomes a customary constitution as a part
of the unwritten constitution directly chosen by the people even prior to the
enactment of the written constitution of the Republic of Korea. Third, since a
customary constitution is also a part of the constitution with the same effect as
that of the written constitution, its revision should be carried out only by way
of revision of the written constitution. Fourth, Article 130 of the Constitution
requires a mandatory referendum for constitutional revision, the Act on the
review intended to relocate the capital encroached upon their constitutional
right to vote on the referendum.
The basic issue underlying the Relocation of the Capital case can be ques-
tioned from two aspects which are internally intertwined with each other and
actually constitute two sides of the same coin. The first aspect of the question
22
Constitutional Court Decision 2004Hun-Ma554, October 21, 2004, 16–1(B) KCCR 1.
