Capital Move Round Two: the Court as an Urban Planner

The Korea Times reports here that a petition challenging the latest plan by the government to establish an "administrative town" has been filed.

Brief background: In late 2002, President Roh Moo-hyun, then a presidential candidate, made a campaign promise that, if elected, he would move the capital of Korea out of Seoul. In late 2003, the President proposed a bill to move the capital, and it passed by an overwhelming margin (167 yes, 13 no).

As the government started implementing the plan in 2004, a constitutional challenge against the plan was filed, with the petitioners arguing that under Article 72 of the Constitution the President was required to hold a national referendum on the capital move question. The legal challenge was thought to be a long shot, as the text of Article 72, "The President may submit important policies relating to diplomacy, national defense, unification and other matters relating to the national destiny to a national referendum if he deems it necessary," appeared to
create the option of calling referendum but not require it. The phrase, "if he deems it necessary," in particular seemed to leave the decision whether to call referendum up to the President. If the petitioners had anything going for them, it was the vague sense that the amount of public deliberation on this issue had seemed disproportionately scant, considering the momentousness of the project the government was about to embark on.

In October, to surprise of many, the Constitutional Court ruled against the government and held the plan to move the capital unconstitutional. The Court's legal analysis left many people baffled. Instead of siding with the petitioners that the President was required to hold a national referendum (which itself would have been a stretch), the Court went a step further and held that there is an unwritten constitutional provision that designates Seoul as the capital of Korea, and that it is therefore unconstitutional to change the capital without formally amending the Constitution (which requires two-thirds in favor in the National Assembly plus a national referendum vote in favor of the proposed amendment).

The concept of customary constitutional law had not been invoked by the Court before, so it took some explaining. The Court stated that even though the nation has a written Constitution, the text of the Constitution does not exhaust the Constitution, as there is also an unwritten Constitution, or customary constitutional law, that has the same binding force as the written provisions of the Constitution. Given that it is not written down, how does one know what's in the unwritten Constitution? The Court explained that it would have to be determined on a case-by-case basis according to the following factors: a customary constitutional law has to be on a fundamental issue -- something so fundamental that it need not be written down; there must be a custom that has been in existence for a long period of time; the custom must not be temporary; the custom cannot be vague; and there has to be a national consensus on the custom. The Court then declared that the idea that Seoul is the capital of Korea is so deep-rooted and fundamental to the national identity that it qualifies as an unwritten constitutional law that cannot change unless the Constitution is amended.

After recovering from the initial shock, the government came up with an alternative strategy, and a new, revised bill was passed in March. The new plan proposes to move some, not all, of the governmental offices to the Kongju-Yongi area. The four most important bodies -- Chong Wa Dae, the Supreme Court, the Constitutional Court, and the National Assembly -- and a few other agencies will stay in Seoul, but the rest will be moved.

The question, then, is whether the new plan, too, will be found by the Constitutional Court to be an attempt to move the capital of Korea without a constitutional amendment. It seems to me that the new plan was designed precisely to avoid constitutional trouble. In the original ruling of unconstitutionality by the Court in October, the Court discussed the concept of the capital city. The Court explained that the capital city must be perceived to be the seat of the government, and, this means that a city must have, at least, the National Assembly and the President for it to be the capital. This particular discussion in the Court's opinion suggests, at least on its face, that the current plan does not violate the Constitution -- as, according to the Court's own definition of the capital, the capital stays in Seoul. This part of the ruling will likely be a key part of the government's case.

Whatever happens in the case, it appears to me that the Court will have to come up with a more detailed theory of capital cities (something that, say, deals with the argument that there should not be more than one capital city, or that a capital city should not be split into multiple pieces) in order to decide this case. Plus, given that the Court has tied the idea of Seoul as the capital to the nation's history, custom, and tradition, the Court will have to say something about how Koreans themselves have understood the concept of a capital city.

In short, because of the way the inquiry has been framed by the Court, the Court now has to confront the question, "What is a capital city (according to Koreans)"? Bring on the urban theorists and architectural historians.

Constitutional Court Justice Search

According to this story (in Korean), the Uri Party is looking outside the public sector for the new Constitutional Court justice to replace Sang-Kyung Lee, who resigned several days ago. As I discussed previously, the National Assembly gets to select three Constitutional Court justices, the President another three, and the Chief Justice of the Supreme Court the remaining three. And as to those to be chosen by the National Assembly, there is an informal norm according to which the major parties take turns in picking justices. This particular vacant slot will be filled by someone chosen by the Uri Party. The story quotes a Uri Party member who is an official of the Legislation and Judiciary Committee of the National Assembly as saying that the party wants to pick a justice with a reformist outlook. The official criticized the current justices for being too conservative and stated that the party plans to select someone from outside the government to add a reformist voice to the Court.

Constitutional Court Justice Resigns; Conscience and Judging

Justice Sang-Kyung Lee (official bios of justices can be found here) resigned abruptly from his post today (details here, here, and here). He was relatively new to the job, as he was appointed a little over a year ago (in February 2004), and was the second most junior member on the Court. (The most junior member is Justice Kong-hyun Lee, who was appointed in March 2005 to replace Justice Yung-il Kim when his term expired.) Justice Lee was chosen for the post by the National Assembly, and he still had about five years remaining in his term. (As I discussed previously, the National Assembly gets to select three Constitutional Court justices, the President another three, and the Chief Justice of the Supreme Court the remaining three, and justices serve for six-year terms.)

His decision to resign can be traced to this KBS story from May 25, which reported that Lee has been underreporting his income from renting his property his Seoul on his tax returns in the last ten years. According to the story, Lee conceded to the reporter that the allegations were true. In a statement he released today (which is quoted here and summarized here), he expressed remorse, while stating that he tried to do his best in following "the Constitution and conscience" in doing his job as a justice, specifically mentioning the impeachment case and the capital move case.

I don't have much to say about this resignation, but I'll use it as an opportunity to discuss something that I've found interesting in the Korean Constitution. In his statement announcing his resignation, Lee said that he followed his "conscience" (yangsim) as well as the "Constitution" while performing his duties as a constitutional court justice. The "Constitution and conscience" phrase refers to Article 103 of the Korean Constitution, which states, "Judges shall rule independently according to their conscience and in conformity with the Constitution and Act."

What's interesting about this from the American perspective is this. Generally, in the U.S., the term "conscience" comes up in connection with judicial decisionmaking when there is a conflict between what the law requires and what the judge thinks is a just outcome. It is commonly argued that a judge is supposed to follow the law, not his conscience, and if the judge goes with his conscience when there is a conflict, it is argued, the judge is abusing his power. Judges are of course supposed to protect individuals' freedom of conscience, but they are not supposed to rule by their conscience. This is why Justice Scalia begins this talk on the relationship between his Catholicism and his job as a Supreme Court justice by stating, "Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court."

This "conscience" can be either liberal or conservative, so depending on which conscience is doing the work, your reaction may vary. For example, Roy Moore, the former Chief Justice of Alabama Supreme Court who was removed from office for refusing to move a Ten Commandments monument from the court building, repeatedly cited his conscience to explain his conduct. On the liberal side, appeals to "conscience" are often made these days in sentencing contexts when a punishment that the law requires is thought to be excessively harsh (some examples here, here, here, and here). Of course, speaking of conscience, one cannot forget the notorious "shocks the conscience" test in the U.S. Supreme Court's substantive due process jurisprudence. The "test," while undoubtedly still valid as a constitutional doctrine, is always on the defensive because of its perceived subjectivity and the nagging suspicion that "conscience" is where judges go when they don't like a particular legal outcome.

So from the American perspective, it is, to say the least, curious that the Korean Constitution embraces the concept of conscience in judicial decisionmaking and even requires that judges "rule . . . . according to their conscience."

What explains this? A few hypotheses. First, it may be that the key concept in the sentence, "Judges shall rule independently according to their conscience and in conformity with the Constitution and Act," is judicial independence, and the term "conscience" should be understood with that in mind. In other words, "conscience" may not be necessarily referring to a judge's individual morality, but a sense of duty that the Court should feel that it owes to the public to uphold the rule of law, even if there are political pressures to do otherwise.

Second, what worries Americans about "conscience" is that we tend to think that one's conscience is not only a private matter but also may be radically different from another's, which is why "freedom of conscience" is frequently linked with "freedom of religion" and why a need to protect it from pressures to conform to other people's beliefs is thought to arise. This is why we get nervous about a judge following his "conscience." We tend to think that the source and validity of an individual's deepest moral beliefs may remain opaque to us, which means that a judge's ruling by his conscience appears to be in tension with the democratic values of transparency and accountability, which in turn demand that public actors use public reason to defend how they exercise power. It seems to me that, for obvious reasons, the kind of anxiety stemming from a recognition of cultural pluralism is not present in the Korean society, at least not to the same degree. Hence the lack of worry about judges' following their conscience in Korea.

Third, deeply related to the second point: It may be that within the Korean legal culture it is unnatural to imagine a situation in which what the law requires conflicts with what the conscience dictates. The school of jurisprudence that is traditionally associated with this outlook is natural law. I certainly do not want to claim, without further reflection, that Koreans subscribe to the natural law theory, but it is hard not to notice a certain natural law "tone" in reading Korean legal opinions. I'll just mention one (big) example here: A concept that is frequently invoked in Korean constitutional law is the concept of "constitutional order," which played an important role in the two most famous cases the Court has recently decided, the presidential impeachment case and the capital move case. The phrase "constitutional order" shows up in the Korean Constitution, but as an apiration in the Preamble, not as a legal guarantee (similar to the way the U.S. Constitution seeks to "establish Justice, . . . promote the general Welfare, and secure the Blessings of Liberty" according to its Preamble). Nevertheless, the Court frequently talks as if the "constitutional order" is a deep normative framework that underlies, imbues, and supplements the Constitution, and is available both as an aid to understand the written Constitution and as a law to be directly enforced. Because the natural law-positivism debate has produced multiple versions of these theories with increasing complexity over the years, this is a thesis that will need to be thought through and defended with some care, which I will not attempt here.