Wednesday, June 15, 2005

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.


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