Administrative Center Multi-City Case

[17-2 KCCR 481, 2005Hun-Ma579·763 (consolidated), November 24, 2005]

In this case, after the Special Measures Act for Building the New Administrative Capital was entirely struck down as unconstitutional and therefore a new Special Act was legislated for the purpose of building an

Administrative Center Multi-City in Yeongi and Gongju areas, the Court dismissed a constitutional complaint against the new Special Act, stating that building the Administrative Center Multi-City does not constitute relocation of the capital and therefore does not infringe on the people's basic rights including the right to vote.

Background of the Case

The Constitutional Court struck down the entirety of the Special Measures Act for Building the New Administrative Capital (hereinafter "New Administrative Capital Act") on October 21, 2004 (2004 Hun-Ma554, et al.) (hereinafter "New Administrative Capital Case"). The Administration and the National Assembly had discussions on follow-up measures, from which building a new city in Yeongi and Gongju areas, the prospective site of the former New Administrative Capital, came up as a promising alternative. Therefore, a new special law was enacted and became effective so that major administrative agencies would be relocated to those areas and would become part of the Administrative Center Multi-City to be newly constructed.

Vice Mayor of Political Affairs of the City of Seoul, the members of Seoul City Council, Gyunggi-do Assembly, Gwachon City Council, the employees of various public entities, and people residing in various parts of the country including Yeongi-gun and Gongju City of Choongnam Province, filed this constitutional complaint on the ground that the aforementioned statute violates the customary constitutional norm that the capital of our country is Seoul, and infringes upon the complainants' right to vote, right as taxpayers, right to be heard, and other basic rights.

Summary of the Decision

The Constitutional Court dismissed the claim with the majority opinion of seven Justices (three Justices writing concurringly, and two Justices dissenting) for the following reasons:

1. Majority Opinion of Four Justices

A.All forty-nine agencies including the Prime Minister's Office is to

be relocated to the Administrative Center Multi-City. The work scope of the relocating agencies is mostly limited to economic, welfare, and cultural areas. The agencies making financial policies important to the nation's economy are not included. Important government policies are still decided through deliberation at the State Council and finally by the President. Then, the Prime Minister has a constitutional duty to assist the President, and executes its mandate of supervising the administrative agencies, the heads of which merely carry out these policies concretely. Especially, in the contemporary society of advanced information and communications technologies, the President and the administrative agencies, even if located remotely from one another, can secure efficient means of communication through which the President can maintain control over the decision-making. Therefore, we do not find that the agencies located in the Administrative Center Multi-City perform central political and administrative functions that amount to control over national policies.

Therefore, the Administrative Center Multi-City is, internally, not where the nation's important policies are finally decided, and externally, not where foreign diplomats of various countries reside and major international relations are formed. A role as the nation's symbol can arise only through long periods of interplay with historical and cultural elements, and cannot be artificially created in the short time. We do not find that the Administrative Center Multi-City brought into existence by the statute at issue gains the status of a capital. Neither do we find that the statute at issue relocates the capital to the Administrative Center Multi-City or that the capital is divided into Seoul and the Administrative Center Multi-City.

B.Under the statute at issue, when the Administrative Center Multi-City is constructed, the National Assembly and the President remain in Seoul. The National Assembly performs legislative functions as the body representing the will of the people, and all state functions are subject to the statutes thus legislated, under the principle of national governance by law. The President, as the chief executive of the government performing executive functions, is the officer of highest responsibility in organizing and supervising the government. The President makes the final decisions on the administration and execution of law, and orders and supervises all members of the government. Therefore, Seoul

continues to perform central political and administrative functions. Also, formation and development of international relations takes place in Seoul, which will still be a very large city and will still maintain its status as the largest city and the economic and cultural center of the nation. The Supreme Court and the Constitutional Court will remain and therefore the core of judicial functions will take place in Seoul. Therefore, despite the construction of the Administrative Center Multi-City pursuant to the instant statute, Seoul remains where central political and administrative functions and national-symbolic functions are carried out, and we do not find that the statute dismantles her role as the capital.

C.Article 72 of the Constitution explicitly grants the President discretion in deciding which important matters will be submitted to a national referendum. The Constitutional Court has confirmed that the Constitution exclusively granted the President discretionary power to conduct a national referendum - the power to decide whether and when to conduct a national referendum, what exactly to refer to the referendum, and the contents of the queries submitted to the referendum. Therefore, even if a majority of the people wishes to submit certain national policies to a national referendum, the President does not violate the Constitution by failing to heed such wish. People are not entitled to the right to submit national policies to a national referendum.

2. Concurring Opinion of Three Justices

We concur that the statute at issue does not make the Administrative Center Multi-City obtain the status of a capital. However, we do not recognize the customary constitution that Seoul is the capital, and we do not believe that it is necessary to revise the written constitution to change the customary constitution.

3. Unconstitutionality Opinion of Two Justices

73% of administrative agencies will be located in the Administrative City, and cover all areas except national defense and foreign affairs. All agencies handling administrative affairs in economic areas, and the Ministry of Planning and Budget, charged with the overall planning and

management of the economic activities of the government, are relocated in the Administrative City. The Prime Minister will be relocated to the Administrative City, taking with it a very important part of the control and supervision of government functions. A substantial portion of the operation of the Cabinet, which is presided over by the Prime Minister, will be carried out in the Administrative City. About 70% of the government budget will be controlled from within the Administrative City on its execution. Administrative functions carried out in the Administrative City are at the highest administrative level, and therefore constitute central administrative functions. Therefore, relocation of national administrative agencies pursuant to the instant statute constitutes division of the capital into Seoul and the Administrative City. The instant statute attempts to prescribe division of the capital by statute when such division can be resolved only through a national referendum revising the Constitution. It therefore infringes upon the people's basic political right to participate in a national referendum on constitutional revision.