Compelled Resignation from Membership in the National Assembly Standing Committee

(15-2(B) KCCR 17, 2002Hun-Ra1, October 30, 2003)

Denied, a request for competence dispute proceeding against theSpeaker of the National Assembly by the petitioner, a member of theNational Assembly of the Grand National Party, who was a memberofthe National Assembly's Health And Welfare Committee and thencompelled to resign from the position as a member of the abovecommittee at the request of the Grand National Party.

A. Background of the Case

Pursuant to the National Assembly Act, a political party with twenty Assemblypersons or more constitutes one negotiation group,and the Speaker of the National Assembly appoints and reappointsmembers of various standing committees within the National Assemblyfor a two-year term at the request of the representing Assemblypersonof each negotiation group, according to the rate of the number ofAssemblypersons belonging to each negotiation group.

Standing committees established within the National Assembly aredeliberative institutions of the National Assembly that review matterspresented to the National Assembly prior to the review at the plenarysession or prepare a bill for legislation in their respective areas. Underthe current customs of the National Assembly, review and assessmentupon legislative bills centers on the pertinent standing committeesrather than the plenary session. Therefore, the plenary session passesas almost unchanged what is reviewed and resolved at the pertinent standing committee.

The petitioner in this case is an Assemblyperson of the Grand National Party and conducted activities as a member of the Healthand Welfare Committee of the National Assembly. The Grand NationalParty determined, as the party's official position, that the public financefor vocational participants and for regional participants of the nationalhealth insurance under the National Health Insurance Act should beseparated, and intended to pass such measure at the National Assemblyplenary session in December of 2001. The petitioner opposed theposition.

When the passage of the above measure became difficult due to the petitioner's opposition, the leading circle of the Grand NationalParty decided to carry through the official party position by compelling

the petitioner to resign from membership in the Health and Welfare Committee. The floor leader of the Grand National Party, who was the representative Assemblyperson of the negotiation group for theGrand National Party, requested the Speaker of the National Assemblyto remove the petitioner from the Health and Welfare Committee andappoint another Grand National Party Assemblyperson to the petitioner'sseat on the committee. The Speaker of the National Assembly acceptedsuch request.

The petitioner thereupon filed a petition for competence dispute proceeding in this case seeking to void the acts of appointment and removal by the Speaker of the National Assembly and to confirmthat the right to review and vote upon legislative bills of the petitioner as an Assemblyperson was infringed by the compelled resignation ofthe petitioner from the Health and Welfare Committee of the NationalAssembly by the Speaker of the National Assembly.

B. Summary of the Decision

The Constitutional Court rejected, by a majority of eight out ofnine Justices, the petitioner's request for competence dispute proceeding. The grounds therefor are stated in the following paragraphs.

(1) Summary of the Majority Opinion

(A)A political party is an intermediary between the citizenry andthe state and by functioning as such political conduit, forms the politicalopinions that may directly affect the decision of the national policiesby independently and actively leading and unifying the pluralistic politicalopinions of the public.

In order for a political party to perform such function of free and open formation of political opinions, a maximum guarantee of the freedom of the political party must precede.

On the other hand, the political party is a political organization that holds a public position and, as such, certain legal regulations to secure its democratic internal order are inevitable. However, suchregulations should not operate as an undue interference with the freedom of political activities of the citizens or the organizationalautonomy of the political party.

(B)The National Assembly is animportant constitutional institution and possesses a wide scope of autonomy to independently manageits own matters. The removal and appointment of members to itsstanding committee at issue inthis case is also within the organizational autonomy of the National Assembly. Therefore, in assessingthis matter, a hasty conclusion of unconstitutionality should be abstainedunless clearly

against the Constitution or relevant statutes.

Open delegation under which each Assemblyperson may take his or her own position, in principle, in activities on the floor of theNational Assembly serves a beneficial function of realization of democracy within the political party and prevention of dictatorship oroligarchy of the political party, by bringing in unrestrained discussionsand formation of opinions.

On the other hand, the negotiation group, which is one of themeans fortifying the political party affiliation of the Assemblypersonsin today's political party state, also functions to reflect the political party's major policies to a maximum degree at the review of thelegislative bills by an attempt to unify the acts of the Assemblypersonsof the same political party on the floor. Thus, it necessitates adviceand control over the floor activities of the Assemblypersons of the same political party.

Even from the position that puts greater importance on the natureas the citizens' representatives than on the nature as the political partymembers of the members ofthe National Assembly, a 'practical coercion from inside the political party' or a 'deprivation of political partymembership' is possible, although deprivation of the status as a memberof the National Assembly on the ground of political activitiesagainst the political affiliation or the decision of the negotiation group(so-called the 'official position of the political party') is not permitted.

Then, a measure of transferring a party member to a differentstanding committee of the National Assembly (by way of resignationand appointment to a vacancy) of an Assemblyperson belonging to apolitical party who holds a different position from the official positionof that political party according to the need of the negotiation groupfor the same political party falls within the scope of 'practical coercionfrom inside the political party'permissible, without special circumstances, under the Constitution.

(C) In light of the functions of the negotiation group discussed above, it is necessary for theeffective operation of the National Assembly that the Speaker of the National Assembly consults the representative Assemblyperson of each negotiation group and respects his or her request in appointing and removing the members of the standing committees for a smooth and effective operation of various matters of the National Assembly.

Unless a request of the representative Assemblyperson of a negotiation group to appoint or remove membersof the standing committee is against the Constitution or pertinent statutes, accommodationto such request by the Speaker of the National Assembly also conformsto the legislative intent thereof, considering the meaning and thefunction of the negotiation group in a political party state.

In summary, the acts of removal and appointment by the Speakerof the

National Assembly at issue in this case represent the requestof the representative Assemblyperson of the negotiation group for thepolitical party to which the petitioner belongs based on the practical coercion from inside the political party and the acceptance by the Speaker of the National Assembly of such request as part of the authority to arrange various matters of the National Assembly. As such, there is no infringement upon the right and authority of thepetitioner clearly in violation of the Constitution or pertinent statutesconspicuously outside the limits of discretion in the procedures concerned.

(2) Summary of the Dissenting Opinion

As long as the assessment and the voting for legislation that isthe original mission of the National Assembly is concerned, the rightand authority of membersof the National Assembly to vote independently and to be bound solely by their respective conscience, either ina plenary session or in a standing committee, should be guaranteedas an inviolable and inalienable right and authority under the principleof open delegation in a representative democracy, which must be given priority in observance notwithstanding today's trend toward a politicalparty state.

Members of the National Assembly are not merely representativesof their respective political parties, and therefore, Assemblypersonsare bound by the policies and decisions of the political parties of theirmembership only to the extent they do not sacrifice the interest of the general public by doing so. Therefore, in this case, the open delegation relationship should be deemed to take precedence over the'party affiliation' or the 'negotiation group affiliation.' However, theSpeaker of the National Assembly removed the petitioner from theHealth and Welfare Committee of the National Assembly at the requestof the representative Assemblyperson of the negotiation group of the Grand National Party, which was clearly in violation of the right to deliberate and vote of the petitioner.

Furthermore, even if the National Assembly Act provides that the Speaker of the National Assembly may remove and appoint for vacancies in the standing committeesat the request of the representative Assemblypersons of negotiation groups and is otherwise silentabout any special additional requirements, the general and internal limits apply under statutory interpretation as a matter of course.Therefore, as long as a particular individual Assemblyperson wishesto continue to perform activities as a member of a standing committee,unless there are special circumstances of unlawful or unjust activitiesconcerning the relevant standing committee, compulsory removal fromthat particular committee during the two-year term against the will of the individual Assemblyperson should not be allowed.

Then, the acts of removal of the petitioner and appointment to a

vacancy therefor by the Speaker of the National Assembly infringed upon the petitioner's right to deliberate and vote on legislative bills at the Health and Welfare Committee of the National Assembly andviolated the right and authority of the petitioner to conduct activitiesduring the two-year term as a member of the same standing committeebut for special circumstances.