[영문판례]
Case Concerning the Presidential Decisionto Dispatch Korean National Armed Forcesto Iraq
(16-1 KCCR 601, 2003Hun-Ma814, April 29, 2004)
Dismissed, a constitutional complaint filed to challenge the decision of the President to dispatch the Korean National Armed Forces to Iraq.
Background of the Case
The President of the Republic of Korea decided on October 18, 2003, to dispatch the Korean National Armed Forces to Iraq, upon consulting the National Security Council that is in charge of theestablishment of policies concerning national security. Thecomplainantfiled the constitutional complaint in the capacity of a Koreannational, seeking to confirm the unconstitutionality of the above decision on the ground that,inter alia, the decision of the President to dispatch the Korean Armed Forces to Iraq was in violation of Article 5 of the Constitution of the Republic of Korea renouncing all aggressive wars.
Summary of the Decision
The Constitutional Court, in a unanimous opinion, dismissed theconstitutional complaint in this case as lacking the legalprerequisitesto a constitutional complaint. Four of the Justices issued aconcurring opinion. The summary of the decision is as follows.
1. Majority Opinion of Five Justices
A decision to dispatch the National Armed Forces to a foreign jurisdiction is a complex and significant matter affecting the interest of the citizens and of the nation. As such, such a decision requires a determination of a highly political nature to be reached through the deliberation of various elements and circumstances includingdomestic and international political relations. Therefore, thejudgment upon the question of whether or not a decision to dispatch the Armed Forces, such as the one challenged in this case, is in violation of the Constitution, including the question of whether the war in Iraq is a war of the aggressive nature that is against the
international norms, should be rendered by the President and the National Assembly, which are elected and composed directly by the
constituents.
The dispatch of the Armed Forces at issue in this case was determined by the President upon considering various elementsconcerning national interest as well as the justifiability of thedispatch, and subsequently secured the procedural justification under the Constitution and the applicable statutes by obtaining the consent of the National Assembly following the deliberation and the decision of
the State Council.
Then, as long as the decision to dispatch the Armed Forces at issue in this case which requires a determination of highly political nature was made in observance to the procedures required by the Constitution and the applicable statutes, deference should be given to the judgment of the President and the National Assembly. The judiciary, which may obtain no more than limited information by its own nature, should thus abstain from reviewing such a matter solely under the judicial standard. The constitutional complaint in
this case is dismissed.
2. Concurring Opinion of Four Justices
The constitutional complaint system under the Constitution and the Constitutional Court Act is one of the remedies available to the individual citizens for the redress of their rights. Only those citizens whose constitutionally guaranteed fundamental right is presently and directly infringed by the exercise or non-exercise of the
governmental power may file a constitutional complaint.
The complainant does not have a standing as he is not to be dispatched subject to the detachment decision at issue in this case, and, further, stands only in the capacity of a general citizen as he is neither presently nor scheduled to be in the military service. As such, although the complainant may have factual or indirect interest in the detachment decision at issue in this case, none of the constitutionally guaranteed fundamental rights of the complainant is
presently or directly infringed by the decision.
Therefore, the complainant lacks self-relatedness to the detachment decision at issue in this case that is required as a legal prerequisite for the constitutional complaint. The constitutional
complaint in this case is dismissed.
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Parties
Complainant
Lee O-Hoon
Counsel of Record, Appointed by the Court: Lee Young-Bok
Respondent
The President of the Republic of Korea
Holding
The constitutional complaint is dismissed.
Reasoning
1. Overview of the Case and the Subject Matter of Review
A. Overview of the Case
The complainant, who is a Korean national, filed in such capacity a constitutional complaint on November 17, 2003, pursuant to Article 68, Section 1, of the Constitutional Court Act. The complainant claimed that the decision to dispatch the Korean National Armed Forces to Iraq was unconstitutional, on the ground that the decision of the government of the Republic of Korea on October 18, 2003 to dispatch the National Armed Forces to Iraq was in violation of Article 5 of the Constitution of the Republic of Korea renouncing all aggressive wars, and, further, that dispatching soldiers to Iraq in particular was in violation of the provisions of the Constitution pertaining to national security and the duty to defend the nation, as the rank and file in mandatory service, unlike career officers and deputies with regular payment of salaries, did
not get paid for their service in any practical meaning.
B. Subject Matter of Review
(1) Subject Matter of Review
The constitutional complaint seeks to hold unconstitutional the
'decision of the National Security Council of October 18, 2003 to dispatch private soldiers to Iraq.' However, the National Security Council is no more than an advisory organization established under the Constitution and is not the entity that performs state action or exercises public authority such as detachment of the National Armed Forces at issue in this case. Even if the National Security Council did make such a decision or resolution, apart from the probability that such a decision would be presumed to be the one rendered by the President as the Commander-In-Chief, such a decision would be regarded as no more than internal decision-making within the state institution, such as the advice or suggestion of opinions to the President, and could not be deemed to be an act that would be
legally binding or effective in itself.
The National Security Council is the advisory organization established by the Constitution for the President to consult in forming foreign policies and military policies concerning national security , and its resolution is not legally effective in itself as it is not binding. However, should the President have determined and publicly announced to dispatch the National Armed Forces with the advice and the resolution of the core international policy and military personnel, such a decision should be regarded as one rendered substantively by the President. Therefore, the subject matter of review in this case should be deemed to be the decision of the President to dispatch the National Armed Forces. This also
conforms with the remedy the complainant seeks in this case.
Then, the subject matter of review in this case is the constitutionality of the 'decision of the President of October 18, 2003 to dispatch the National Armed Forces to Iraq(hereinafter referred to
as the 'detachment decision at issue in this case').'
(2) Relevant Provisions of Law
The Constitution of the Republic of Korea(as revised on October 29,1987)
Article 5, Section 1
Article 10
Article 60, Section 2
Article 74, Section 1
Article 91, Section 1
2. Summary of the Complainant's Argument and the
Opinions of the Relevant Parties
A. Summary of the Argument of the Complainant
(1) Majority of the nations in the international community are in a position that the war in Iraq was waged by aggression. The decision at issue in this case to dispatch the Korean National Armed Forces to an aggressive war as such is in violation of Article 5, Section 1, of the Constitution of the Republic of Korea that
"renounces all aggressive wars."
(2) It is necessary to dispatch soldiers rather than officers or deputies as the dispatch of the National Armed Forces has been determined. This will disturb the peace of all those who currently serve the military and are scheduled to serve, and the parents whose children are currently in service, as the Constitution obligates all citizens with a duty to defend the nation, thereby infringing their
right to pursue happiness
B. Summary of the Opinions of the Relevant Institutions
(1) Answer of the President, as the Chair of the National
Security Council
The subject matter of review as stated in the constitutional complaint in this case is the decision of the National Security Council of October 18, 2003 to dispatch additional Armed Forces to Iraq. However, the decision of the National Security Council is no more than the advice required for decision-making internal to the state institution, and is not in itself an act causing legal effect upon the rights and obligations of the citizens. Therefore, the constitutional complaint filed in this case is unjustified as it lacks the legal prerequisites, as it seeks review upon a matter other than the exercise of governmental power within the meaning of Article 68, Section 1, of the Constitutional Court Act. Should the detachment decision of the National Security Council be deemed as an exercise of governmental power, such a decision does not presently or directly infringe the fundamental right of the complainant himself, rendering the constitutional complaint in this
case unjustified in this regard as well.
(2) Opinion of the Minister of the Ministry of Defense
(A) The decision of the President of October 18, 2003 to dispatch additional Armed Forces to Iraq, which is the subject matter of review in this case, constitutes no more than one step in
the internal decision-making process of the state institution until the National Assembly consents to it, and does not in itself cause direct legal effect upon the citizens. Therefore, a constitutional complaint challenging such a decision is unjustified, lacking legal
prerequisites.
(B) The detachment decision at issue in this case constitutes a so called executive prerogative action, for (i) the above detachment decision is an exercise of state power undertaken by the President in his capacity as the head of the state or the head of the executive branch endowed by the Constitution; (ii) the above detachment decision is a determination of highly political nature borne out of consideration of such various domestic and international political situations such as its influence upon national interest, relationship with the allies, an amicable settlement of the nuclear situation in North Korea, and the solidification of the South Korea-U.S. alliance; (iii) should the above detachment decision obtain the consent of the National Assembly, it would be inappropriate for the Constitutional Court, which is not on par with the legislative branch in terms of democratic legitimacy to determine the constitutionality of the above decision; and, (iv) should there be a decision holding the above decision unconstitutional, there is no legal method to enforce such a decision. As the judicial review over an executive prerogative action or political question should be restrained, the constitutional complaint in this case is unjustified.
(C) The complainant has only an indirect and factual interest upon the above detachment decision, and does not have a direct legal relation to the infringement of the fundamental right claimed by the complainant. As such, the constitutional complaint in this
case is unjustified, as it lacks self-relatedness.
3. Determination of the Court
The Constitution endows the President with the authority to declare war and conclude peace along with the authority concerning the diplomatic relationship with foreign nations(Article 73), and also with the authority to command the Korean National Armed Forces pursuant to the Constitution and the applicable laws(Article 74, Section 1). At the same time, however, the Constitution prevents arbitrary warfare or dispatch of Armed Forces by mandating prudence in exercising the prerogative of supreme command of military by the President, by requiring the consent of the National Assembly in case of the declaration of war or the dispatch of
National Armed Forces(Article 60, Section 2).
A decision to dispatch Armed Forces to a foreign nation as at
issue in this case is a complex and significant matter not only affecting the life and the bodily safety of the individual soldiers who are dispatched , but ultimately affecting the interest of the citizenry and the nation, including the status and the role of the nation in the international community, the nation's relationship with the allies, and the national security issues. As such, a decision to dispatch Armed Forces requires a resolution of highly political nature based upon the consideration of total circumstances concerning domestic and international political relations, and upon the presupposition of the future and the establishment of the goals concerning a desirable stance of the nation in the future and the
direction in which the nation should move forward.
Therefore, it is desirable that such a decision is to be made by the institution representative of the constituents that can be held politically responsible toward the constituents therefor, by way of prudent decision-making through an expansive and extensive deliberation with the experts in the relevant fields. The Constitution in this vein endows such authority onto the President who is directly elected by the constituents and is responsible directly for the constituents, while authorizing the National Assembly to determine whether or not to consent to a decision to dispatch the Armed Forces, in order to ensure prudence in the President's exercise of such authority. Under the government structure of representative democracy adopted by the current Constitution, an utmost deference should be given to such a decision of highly political nature as this one rendered by the representative
institutions of the President and the National Assembly.
Therefore, whether or not the dispatch decision at issue in this case is in violation of the Constitution, that is, whether such decision contributes to the world peace and human prosperity, whether such decision will ultimately benefit the interest of the citizenry and the nation by enhancing national security, and whether the war in Iraq is a war of aggression that is in violation of international norms, should be judged by the representative institutions of the President and the National Assembly, and may not be appropriately judged by this Court that is by nature in possession of no more than limited materials and information. Here, the judgment of this Court might not assertively be more right or correct than that of the President or the National Assembly; further yet, the judgment of this Court may not securely receive public
trust over its judgment upon this matter.
The record indicates that the dispatch at issue in this case was determined by the President after consultation with the National Security Council with respect to the nature and the size of the
detachment and the duration of the station, based on the consideration not only of the justifiability of the dispatch but also of various elements concerning national interest such as the relationship with the allies for amicable settlement of the nuclear situation in North Korea, our national security, and the domestic and foreign political relationships; and subsequently that the dispatch decision at issue in this case was rendered with the consent of the National Assembly following the deliberation and the resolution of the State Council, thereby securing procedural justification pursuant to the Constitution and the relevant
statutes.
The detachment decision at issue in this case is by its own nature a matter requiring a determination of highly political nature concerning national defense and diplomacy. As this decision has clearly been rendered following the procedures established by the Constitution and the relevant laws, the judgment of the President and the National Assembly upon this matter should be respected, while this Court should refrain from passing judgment upon this matter solely under judicial standards. Judicial self-restraint over the matters concerning diplomacy and national defense that require a resolution of highly political nature in other nations with a long tradition of democracy is also deemed to be in the very same vein. Although there may be concerns that such abstention of judicial review might leave arbitrary decisions intact, such decisions of the President and the National Assembly will ultimately be subject to the assessment and the judgment of the constituents through
elections.
Then, as it is appropriate for this Court to refrain from judicially reviewing the detachment decision at issue in this case, with the exception that there is a concurring opinion ofJustices Yun Young-chul, Kim Hyo-jong, Kim Kyung-il and Song In-junas indicated below, this Court in a unanimous opinion of the rest of the Justices decides to dismiss the constitutional complaint in this case.
It is so determined.
4. Concurring Opinion of Justices Yun Young-chul, Kim Hyo-jong, Kim Kyung-il and Song In-jun
We agree with the conclusion of the majority of the Court, however, respectfully disagree with the ground therefor, as stated in
the following paragraphs.
The Constitution of the Republic of Korea expressly provides in Article 111, Section 1, Subdivision 5, for the adjudication upon constitutional complaint as one of the remedies for relief of the rights of the citizens, and, pursuant to this constitutional provision, the Constitutional Court Act in Article 68, Section 1, provides that any person whose constitutionally guaranteed fundamental right is infringed due to exercise or non-exercise of the governmental power may request the Constitutional Court an adjudication on
constitutional complaint, thereby establishing the system therefor.
However, the person whose fundamental right is infringed within the meaning of this statutory provision is a person whose own fundamental right is presently and directly infringed due to the exercise or non-exercise of the governmental power, and does not include a third party solely with indirect or factual interest, pursuant to the decision of the legislators and the consistent position of this Court(See, for reference, 5-2 KCCR 127, 134, 89Hun-Ma123, July 29, 1993; 10-2 KCCR 563, 565, 97Hun-Ma404,
September 30, 1998).
The complainant is, as the complainant himself admits, not a party concerned who will be dispatched due to the detachment decision at issue in this case, nor is the complainant presently or is he scheduled to be in military service. Then, while the complainant may have factual or indirect interest in the detachment decision at issue in this case in his capacity of a general citizen, his own constitutionally guaranteed fundamental rights, such as the right to pursue happiness as the complainant claims, is neither presently nor directly infringed due to the detachment decision at issue in this
case.
We agree with the conclusion of the majority opinion that the constitutional complaint in this case should be dismissed. However, we base our conclusion on a different ground from the one of the majority in that the complainant lacks self-relatedness to the detachment decision at issue in this case which is a legal
prerequisites for a constitutional complaint.
Justices Yun Young-chul(Presiding Justice), Kim Young-il, Kwon Seong, Kim Hyo-jong, Kim Kyung-il, Song In-jun, Choo Sun-hoe, Jeon Hyo-sook, and Lee Sang-kyung(Assigned Justice)