[VIEWPOIINT]Court protected constitution

The controversial special law on the new administrative capital was ruled unconstitutional. An overwhelming majority of the Constitutional Court judges, voting 8 to 1, decided that the special law violated the people’s right to vote in a national referendum and put an end to the political controversy.
According to the majority opinion of the Constitutional Court, Seoul is the capital of the country and has been considered as such by the people for 600 years, so that fact is part of the customary constitution, and thus self-evidently part of the unwritten constitution. The judges saw the decision to move the capital as a constitutional matter, and so the capital could be moved only if the constitution were revised.
The fact that the capital has been Seoul since the compilation of the Gyeongguk Daejon, or the Administrative Canon, is a national consensus and part of the customary constitution handed down over time, before the revision of the current constitution. Therefore, the court said, the National Assembly cannot legislate a move of the capital except through a constitutional amendment.
The Constitutional Court’s acknowledgement of the customary constitution’s precedence over the law approved by the Assembly is epochal because it used to turn to positive laws for interpretation.
The minority opinion of the Constitutional Court was to attach more importance to representative democratic politics, but the majority opinion was, rightfully, to value the constitutional consensus of the customary constitution more.
The court’s decision deserves high marks because the court carried out its function of checking unconstitutional legislation by the Assembly and protecting the constitution. It was right for the Court to see the significance of reaching a national consensus and to reject the election strategy of politicians who wanted to move the capital as unconstitutional.
The governing party and Chungcheong residents may criticize the Constitutional Court’s decision, but the government, the Uri Party and lawmakers should accept the ruling and move on. The court did not interrupt or oppose moving the capital itself, but it made clear that in order to do so, the constitution should be revised, and to revise the constitution, the revision should be voted in a national referendum and attain a general consensus.
The decision makes it clear that if politicians want to move the capital from Seoul, the capital of the customary constitution, they should stipulate this move in the official constitution to reach a national consensus and have the public vote in a national referendum on whether to amend the constitution.
The decision can also be a warning against the Assembly’s arbitrary and hasty legislation. It made clear that the Assembly’s decision on constitutional matters for political purposes goes against the rule of law.
The Assembly should not again make a law that infringes on the people’s basic rights without public hearings or legitimate attempts to attain a national consensus. The Assembly has produced lots of legislation that delegated issues involving the people’s basic rights to ordinances, which is also an infringement on the public’s basic rights.
Until now, the administration and political circles have shown a tendency to ignore the Constitutional Court’s decisions or the Supreme Court’s rulings, but the decision on the capital move this time has the added significance as a warning against this tendency.
The Constitutional Court and the Supreme Court at times have ruled against the wishes of the government and the governing party to protect the constitution. When this has happened, the government and politicians have tended to ignore or berate the essence of the constitutional or legal protection system. In this regard, the Court’s decision on the capital move can be an instructive ruling for them.
The Constitutional Court was created to prevent political strife between the ruling and opposition parties. It is certainly necessary that the Constitutional Court be strengthened so that it can declare legislation invalid when such obviously unconstitutional measures are passed by the force of the majority party in the Assembly.
In the impeachment of President Roh Moo-hyun, many criticized the court for misunderstanding the result of the legislative elections as the public’s rejection to his impeachment, using that basis to rule against the impeachment. But the Constitutional Court seems to have restored its honor in a degree this time with the decision on the capital move.
“The Special Law on the Construction of the New Administrative Capital” has already lost its validity. Further implementation of this law would be illegal. In order for the government to move the capital, the constitution should be revised as the Constitutional Court has ruled, and to revise the constitution, a national consensus should be attained.

* The writer is a professor emeritus of constitutional law at Myongji University. Translation by the JoongAng Daily staff.

by Kim Chul-soo