[Viewpoint] Disagreeing with the court

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[Viewpoint] Disagreeing with the court

It would be hard to find anyone in Korea as important as the nine justices of the Constitutional Court. While the Supreme Court is also important, the Constitutional Court has been making the ultimate ruling on major national issues. The nation asks directions from the Constitutional Court.

The Constitutional Court is a product of the democratic system completed in 1987. For over 20 years, the court has recognized the unconstitutionality or infringement of rights in 770 cases.

While some decisions have been controversial, the Constitutional Court is generally considered to have defended the Constitution and human rights.

One of the landmark cases that saved the nation from chaos was finding the capital relocation plan unconstitutional. In October 2004, the Constitutional Court decided that it was a customary constitutional law that Seoul is the capital of the Republic of Korea, and, therefore, a constitutional revision through a vote was necessary.

It was a clear reason that ordinary minds could not have come up with.

However, the Constitutional Court has not always been so clear.

A year later, the court ruled that an administrative multi-city was not unconstitutional. Since the president, defense and foreign affairs ministries, the National Assembly and the Supreme Court would remain in Seoul, Sejong City would not mean a divided capital. Since the capital was not being divided between Seoul and Sejong, a constitutional revision was not necessary.

However, two of the nine judges, Kwon Seong and Kim Hyo-jeong, saw that Sejong City would divide the capital. They argued that if the prime minister, 12 ministries and four agencies were to move to Sejong, it would constitute another capital.

Personally, I support the opinion of the two justices. The core function of a capital is the administrative operation of the country, not legislative or judicial affairs.

The Constitution states that the prime minister receives orders from the president on administrative affairs and manages all the administrative ministries. How can you say the capital is not being divided when 12 of the 17 ministries as well as the prime minister are relocated elsewhere?

If the Constitutional Court had ruled Sejong City unconstitutional, we could have avoided the national confusion and agony we are going through right now.

Some might argue that the decision by the court must be respected. Of course, it must.

Society is bound to follow the decisions of the Constitutional Court. However, that does not mean the court is a sanctuary free from criticism.

Fundamentally, the court is political.

The nine justices are picked by the president, the chief justice and the ruling and opposition parties.

Since the chief justice is appointed by the president, the political tendencies of the justices are almost inevitably swayed by the wishes of the president and the ruling party.

All nine current incumbent justices had been appointed during the Roh Moo-hyun administration. The Constitutional Court is politically structured and deals mostly with political cases. Since the structure of the Constitutional Court is inherently political, it would be overlooking the obvious to say the court does not take the political impact of its decisions into account. The bottom line: The Constitutional Court stands in the middle of politics in Korea today.

From the perspective of political prudence, the decision on the media reform law is unsatisfactory. The National Assembly voted for the media law when many members were not present. A majority of justices ruled that it was a violation of the principle of not deliberating the same bill twice during the same session.

The principle is defined in Article 92 of the National Assembly Act, so the National Assembly violated its own law.

In fact, the National Assembly Act is a procedural law with no punishment for violations. And it is not the first time that the National Assembly has violated the National Assembly Act, including the time limit to pass the budget plan.

However, the citizens are confused by the court’s decision since this principle has been but rarely broken.

Four of the nine justices saw that the principle of not deliberating the same bill twice during the same session was not violated.

They decided that the majority attendance was a condition for the voting procedure and was necessary the passage of the bill.

Personally, I support the minority opinion.

In fact, the National Assembly speaker usually waits for quorum to be met when voting.

In November 2002, the National Assembly voted for some 40 bills again when the majority of the members was not present for the initial vote.

If one of the five justices had joined the minority opinion, there would not have been the chaos over the principle of not deliberating the same bill twice during the same session.

Regrettably, the Constitutional Court is limited to the legalistic belief of the judges and has created new confusion.

The nation is asking for direction, but the Constitutional Court is pointing them the wrong way.

I feel like filing for a constitutional petition to determine the identity of the Constitutional Court.


*The writer is an editorial writer of the JoongAng Ilbo.


by Kim Jin
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