"Possible to Relocate Administrative Capital by Law" vs "Violation of Unwritten Constitution"... Divergent Opinions in Legal Circles

Constitutional Law Scholars: "2004 Constitutional Court Decision Has Issues, Law-Based Solution Preferred"

On December 27 last year, Yoon Nam-seok, Chief Justice of the Constitutional Court, and the justices were waiting for the start of the constitutional review ruling on the unconstitutionality confirmation of the 'Announcement of the Korea-Japan Comfort Women Issue Agreement' at the Constitutional Court in Jongno-gu, Seoul. Photo by Kang Jin-hyung aymsdream@

[Asia Economy Reporters Seokjin Choi and Seongpil Jo] Legal circles are showing mixed reactions regarding the feasibility of the ruling party's proposed 'administrative capital relocation.'

Since the Constitutional Court ruled in 2004 that "'Seoul as the capital' is a customary constitution" and "can only be changed through constitutional amendment," some hold the view that relocating the capital through legal revisions or enactments is impossible. However, there is a strong counterargument that the Constitutional Court's decision itself can be changed, and given the many changed circumstances since then, the ruling party can relocate the capital through the enactment of a special law.

In particular, many constitutional scholars appear to believe that there was a problem with the past Constitutional Court decision that recognized the existence of customary constitutional law in South Korea, which adopts the principle of statutory law, and even granted it the same effect as the written constitution.

◆2004 Unconstitutionality Ruling... Situation Changed After 16 Years= According to political circles on the 23rd, Kim Tae-nyeon, floor leader of the Democratic Party of Korea, proposed on the 21st to the opposition party the formation of a 'Special Committee for the Completion of the Administrative Capital' in the National Assembly, suggesting a plan to complete the administrative capital by amending the 'Administrative City Construction Act' without going through constitutional amendment or a national referendum.

Previously, in 2004, when the late President Roh Moo-hyun pushed for the administrative capital relocation, the Constitutional Court ruled the 'Special Measures Act for the Construction of the New Administrative Capital' unconstitutional.

At that time, the Constitutional Court judged that ▲ Seoul being the capital of the Republic of Korea is a customary constitution, and ▲ since customary constitutional law has the same effect as the written constitution, its content cannot be changed by law but only by constitutional amendment, thus "the New Administrative Capital Act infringes on the people's right to a referendum for constitutional amendment as stipulated in Article 130 of the Constitution."

However, even then, legal circles raised questions such as ▲ whether such customary constitutional law actually exists, ▲ whether it is appropriate to recognize the same effect for unwritten constitutional law as for the written constitution, and ▲ whether there is a consensus among the people that Seoul is the capital, criticizing it as an "excessive theoretical construction."

At that time, Justice Jeon Hyo-sook expressed a minority opinion stating that "it is difficult to recognize the same effect for unwritten constitutional law as for the written constitution, and the capital relocation is possible through new legislation."

Attorney Noh Hee-beom, a former constitutional research officer, said, “The 2004 Constitutional Court decision was heavily criticized legally for recognizing unwritten constitutional law as having the same effect in a country with a written constitution.”

He added, “Justice Jeon Hyo-sook, who issued the minority opinion at the time, stated that ‘although there is a practice that Seoul is the capital, it does not have the constitutional consensus (agreement among community members) to the extent of national conviction,’ and ‘even if it has constitutional normative power, it is possible for the National Assembly, the people's representative body, to change such a custom through legislation or amendment.’”

Attorney Noh added, “Customary constitutional law can disappear as well as exist, so the national consensus must remain for its effect to be maintained. The fact that the National Assembly is discussing amendments suggests that the national consensus has already disappeared.”

Professor Kim Seon-taek of Korea University Law School said, “The first law was ruled unconstitutional, but the second law, which excluded the parts ruled unconstitutional by the Constitutional Court, was ruled constitutional. The issue is whether a law with the same content as the one ruled unconstitutional can be repeatedly legislated, and the answer is yes.”

Professor Kim said, “However, if similar laws are enacted in a very short period and judged by the same constitutional justices, without special changes in circumstances, it could be dismissed. But now, 14 to 15 years have passed, so the circumstances can be considered somewhat changed.”

He continued, “Another issue is that the Constitutional Court ruled unconstitutional based on customary constitutional law, but in a country with a written constitution like ours, customary constitutional law should be recognized very strictly and exceptionally.”

Professor Kim Sang-gyeom of Dongguk University Law Department also said, “Since South Korea is a written constitution country, customary constitutional law cannot be recognized. Many constitutional scholars at the time did not recognize customary constitutional law, but the Constitutional Court made an excessive judgment. In fact, the past Constitutional Court decision was wrong.”

Professor Kim pointed out, “The idea that moving the National Assembly or the Blue House means relocating the capital is nonsense. That is not a matter for the Constitutional Court to decide but for the people.”

He emphasized, “Looking at constitutional history, customary constitutional law was discussed when countries like the UK did not have a constitution in the past, but since the 1800s, it has been an absolute written constitution with no customary constitutional law. This is because the constitution is decided by the people, not by custom.”

On the other hand, attorney Jang Joon-sung of Law Firm How said, “Although South Korea is a written constitution country, amending customary constitutional law not explicitly stated in the text requires constitutional amendment. If the capital is changed by law, the same unconstitutionality controversy as in the past will arise.” He added, “It is questionable whether the customary constitutional law that ‘the capital is Seoul,’ established over hundreds of years, can be changed in just over ten years.”

◆Changed Composition of Constitutional Court Justices= Meanwhile, considering the current composition of the Constitutional Court justices, the possibility of realizing the capital relocation through legislation promoted by the ruling party is considered high.

If the ruling party pushes related legislation alone, the opposition party will likely file a constitutional complaint seeking a ruling of unconstitutionality. However, since many of the current Constitutional Court justices were appointed by the president or nominated by the ruling party or the president-appointed Chief Justice, and given the changed circumstances, it is widely expected that the Constitutional Court will not easily issue an unconstitutional ruling.

This content was produced with the assistance of AI translation services.