[The Editors' Verdict] Administrative Capital Relocation and Customary Constitutional Law

Recently, as real estate prices for housing in Seoul and the metropolitan area have surged, the relocation of the administrative capital has been raised as part of the government's countermeasures. Specifically, the plan is to move the National Assembly and the Blue House, which remain in Seoul, to Sejong City, the administrative hub city, thereby completing the administrative capital relocation that was halted by the Constitutional Court's ruling of unconstitutionality in 2004. Whether the policy of relocating the administrative capital is an appropriate measure as part of real estate countermeasures is another matter, but the question arises as to whether it is constitutionally possible to pursue the administrative capital relocation again after the Constitutional Court's ruling of unconstitutionality.

In 2004, the Constitutional Court's main reasoning for ruling the administrative capital relocation through the then "Special Measures Act for the Construction of the New Administrative Capital" unconstitutional was as follows: First, although Seoul being the capital is not explicitly stated in the current Constitution, it corresponds to customary constitutional law; second, the formal effect of customary constitutional law is equivalent to that of the written Constitution; third, to change the customary constitutional law that Seoul is the capital, the constitutional amendment procedure prescribed in the Constitution must be followed; and fourth, relocating the capital by law without following the constitutional amendment procedure infringes on the people's right to a referendum on constitutional amendments as stipulated in Article 130, Paragraph 2 of the Constitution, thus being unconstitutional.

The Constitutional Court's reasoning had the following issues. First, regarding the concept of the Constitution, there was a misunderstanding about the distinction between the "formal Constitution" and the "substantive Constitution." The formal Constitution refers to a constitutional code, such as the Constitution of the Republic of Korea, or the highest legal norm with formal effect domestically. On the other hand, the substantive Constitution is a comprehensive concept encompassing all legal norms that regulate matters related to the organization and operation of the state, the authority and exercise of state organs, and the relationship between the state and its citizens?that is, constitutional matters. The substantive Constitution includes laws, orders, regulations, and customary law. Customary constitutional law is not a formal Constitution but a concept included in the substantive Constitution. Therefore, the Constitutional Court overlooked that customary constitutional law, as a type of customary law, can be created or abolished by laws enacted by the National Assembly.

Second, there was a misunderstanding about the concept and essence of constitutional amendment. Constitutional amendment refers to consciously changing provisions of the Constitution according to the procedures prescribed by the Constitution while maintaining the fundamental "identity" and "continuity" of the existing Constitution. Fundamentally, constitutional amendment is a concept established on the premise of a written Constitution, i.e., a formal Constitution. South Korea is a country with a written Constitution, the Constitution of the Republic of Korea. In our country, where the Constitutional Court granted customary constitutional law the same effect as the formal Constitution and ruled that customary constitutional law can only be amended by the constitutional amendment methods stipulated in Articles 128 to 130 of the Constitution, this reflects a misunderstanding of the concept and essence of constitutional amendment.

Regarding the Constitutional Court's 2004 ruling of unconstitutionality on the administrative capital relocation through the "Special Measures Act for the Construction of the New Administrative Capital," the constitutional law community has offered much criticism not only of the conclusion but also of the reasoning. In particular, the fact that the Constitutional Court ruled the law unconstitutional despite it being passed by the National Assembly?a representative body directly elected by the people through bipartisan agreement?and despite the issue not being directly related to the protection of human rights and fundamental rights, can be seen as a manifestation of judicial activism.

If the government again pursues the administrative capital relocation through a special law passed by the National Assembly and, similarly to 2004, the unconstitutionality is challenged through constitutional review or constitutional complaint at the Constitutional Court, regardless of the conclusion on unconstitutionality, the Constitutional Court should at least revise the reasoning presented in the 2004 precedent.

Hwang Seong-gi, Professor, Hanyang University School of Law

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