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Jongcheol Kim
for the relocation of the capital city but in principle it is not constitutionally
commanded, and since the constitution is silent on the location of the capital
city and the process to change it, this issue would be better decided by the reg-
ular political process among elected representatives, and under such a consti-
tutional circumstance, the constitutional court is not the right place to discuss
the constitutional validity of the decision to construct a New Administrative
Capital. For one thing, there was no clear evidence that its intervention con-
tributed to the enhancement of democracy and human rights as the justifica-
tion for active constitutional review. An invisible or unwritten constitution is
of no use in this arena.
11.4.2. Protection of the Presidency from the Abusive Use of
Impeachment in the Presidential Impeachment Case
In 2004, President Roh Moo Hyun was impeached for, among others, vio-
lations of the Election Act, corruption stemming from abuse of power, and
the unfaithful performance of presidential duties. When he was impeached,
he had just completed less than one year out of five years of his term, while
the four-year term of the National Assembly was almost finished so that a new
general election was in process. The general public challenged this attempt
at impeachment and in the ensuing election, the supporters of impeachment,
who were used to obtaining more than two-thirds of the total seats in the
National Assembly, faced a humiliating defeat and the pro-president party
won the majority of the new National Assembly.
After the general election, the KCC came to a conclusion in an especially
speedy process. The KCC found wrongdoings on President Roh’s part on
three accounts. First, his open support for a political party at a press con-
ference prior to the scheduled general election violated Article 9(1) of the
Public Official Election Act requiring public officials’ neutrality in elections.
Second, his seemingly defiant comments on the warning of the National
Election Commission which prohibited him from making political speeches
in relation to a general election was in violation of the presidential duty to
uphold and protect the Constitution. Third, his proposal of a national referen-
dum on the people’s confidence in his presidency was not compatible with
Article 72 Paragraph 1 allowing a referendum only on specific policies, and
thus breached his duty to uphold and protect the Constitution.
26
Despite these findings, however, the KCC refused to dismiss him from the
presidency on the ground that these wrongdoings were not grave enough to
26
Constitutional Court Decision 2004Hun-Na1, May 14, 2004, 16–1 KCCR 601, 609.
Is the Invisible Constitution Really Invisible?
335
deprive him of the presidency.
27
In reaching this conclusion, the KCC relied
upon a “balancing test” or the principle of proportionality in the sense that
constitutional punishment should be proportionally correspondent to the
responsibility of the person charged with wrongdoings:
Article 53(1) of the Constitutional Court Act provides that, “when there
is a valid ground for the petition for impeachment adjudication, the
Constitutional Court shall issue a decision removing the respondent from
office.” The above provision may be interpreted literally to mean that the
Constitutional Court shall automatically make a decision of removal from
office in all cases where there is any valid ground for impeachment as set
forth in Article 65(1) of the Constitution. However, if every and any minor
violation of law committed in the course of performing official duties were to
mandate removal from office, this would offend the request that punishment
under the Constitution proportionally correspond to the obligation owed by
the respondent, that is, the principle of proportionality. Therefore, the “valid
ground for the petition for impeachment adjudication” provided in Article
53(1) of the Constitutional Court Act does not mean any and all incidences
of violation of law, but the incidence of a “grave” violation of law sufficient to
justify removal of a public official from office.
The KCC also held that “the question of whether there was a ‘grave viola-
tion of law’ or whether the ‘removal is justifiable’ cannot be conceived by
itself. Therefore, the existence of a valid ground for . . . the removal from office,
should be determined by balancing the ‘degree of the negative impact on or
the harm to the constitutional order caused by the violation of law’ and the
‘effect to be caused by the removal of the respondent from office’.”
Here we can see that the KCC formulated an “invisible” discretion of strik-
ing balances between competing interests and values in impeachment. It is
interesting to see that the KCC tried to rely on Article 53 Paragraph 1 of the
Constitutional Court Act to as the statutory base for a balancing test in the
impeachment procedure. As the KCC acknowledged, this provision can be
literally construed as the recognition of the power of final say in the hands of
the KCC. However, the existence of the power to declare impeachment of a
public official is one thing, and how to wield this power is a totally different
matter. That is, the KCC did not justify sufficiently their choice of a balanc-
ing test in the impeachment process. It means that the KCC just assumed
the discretion of striking balances between competing interests and values
27
The protection of the President from outside interference is reinforced by the provision of
Article 84 vesting him with the privilege exempted from criminal charges except for insurrection
or treason during his term.
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