Ban on Observation of the National Assembly proceedingsCase

[12-1 KCCR 886, 98Hun-Ma443, etc.,(consolidated),

June 29, 2000]

In this case, the Constitutional Court dismissed a constitutionalcomplaint filed by civic organizations for the infringement on theirrights to know when they were denied an application to observe thesmall committee proceeding and the National Audit of the NationalAssembly.

A. Background of the Case

(1) Denial of Application for Observation of Small CommitteeProceedings of the National Assembly

Complainants, the members of the congressional budgeting moni-toring committee of a civic group, called Citizen's Coalition for Eco- nomic Justice, applied for a right to observe the Numbers AdjustmentSub-committee of the National Assembly Budget Finalization Special Committee.

Complainants received a denial and sought a constitutional com- plaint, stating that the denial of their right to observe the Subcom-mittee proceeding infringes their rights to know, their rights to prop-erty, and other basic rights.

(2) Denial of Application for Observation of the National Auditof the National Assembly

The power of a national audit set forth in Article 61 of the Constitution is unique to the Korean Constitution. It means thepower of the National Assembly to audit all affairs of the nationalgovernment annually.

Article 55(1) of the National Assembly Act states "Those whoare not the members of the National Assembly can observe the Com-mittee proceedings by obtaining the permission of the Chairpersonof the Committee."

Complainants are members of the Citizens' Coalition to Monitorthe National Audit formed for the purpose of monitoring and criticiz-ing the Assembly members' auditing activities. In order to observethe national audit of 1999, they submitted the requests to observeeach of the Committee proceedings to the corresponding CommitteeChairpersons.

Complainants, when denied any right to observe the nationalaudit proceedings in each of the proceeding venues, filed this consti-tutional complaint, alleging that the denial of their rights to observethe national audit and Article 55(1) of the National Assembly Actwhich formed the basis for such denial infringed their rights to know.

B. Summary of the Decision

The Constitutional Court denied both complaints on the follow-ing majority opinion of six Justices:

Article 50(1) of the Constitution states the proceedings of theNational Assembly shall be open to public, making clear the principleof public proceedings. The National Assembly Act reflects this con-stitutional principle and makes the Plenary Session open to public.The same rule is applied to Committee proceedings.

Therefore, both the Plenary Session or Committee proceedingsmust be open to public in principle. However, the relevant provisionsof the Constitution and the National Assembly Act do not adhere tothe principle of opening to public but allow session with closed doorsno-disclosure when the participants to the meetings autonomouslydecide not to open to public.

Article 55(1) of the National Assembly Act concerning observa-tion of Committee proceedings is based on the principle of opening to public,

and does not allow Chairpersons to deny observation re-quests at their sole discretion without restriction. It should be inter-preted as authorizing the denial of observation requests only whenit is necessary for the maintenance of the order of the meetings.When interpreted thus, the provision is not an unconstitutional pro- vision that restricts people's basic rights.

Subcommittees carry out concrete and substantive reviews of bills, revise bills, and prepare the bills for Committees to review.Given their important and substantial role in the legislative process of the National Assembly, subcommittee proceedings should also beopen to public. However, open proceedings will make the partici-pants more conscious of their constituencies and therefore makesubstantive discussions or political compromises difficult to reach.

As examined above, in light of the intent of the Constitutionwhich prescribes the principle of opening to public and yet allow theautonomous judgments of the meeting participants, whether to openSubcommittee proceedings to public can also be decided by each Sub-committee reasonably by taking into consideration various circum-stances.

The Numbers Adjustment Subcommittee of the Budget Finaliza- tion Special Committee adjusts and finalizes line-items and numbersof the budget comprehensively. Opening to public of the Subcom-mittee proceeding to many state agencies and interested groups isnot desirable. Not opening to public of the Subcommittee proceedingis established as a custom within the National Assembly, indicating that the members of the Budget Finalization Special Committee haveeffectively agreed to such non-disclosure. Therefore, the denial ofthe observation request in this case does not depart from the scope of the autonomy of the National Assembly over its proceedings, and does not constitute an unconstitutional exercise of public authority.

According to the National Assembly, the Citizens' Coalition hasnot been tested on the fairness of its criteria of evaluation when it evaluated the Assembly members' audit activities, and has worriedthe National Assembly that the publicity on its reviews through the media may grievously damage the political integrity or reputation ofthe Assembly members. If the National Assembly, for these reasons, decided that opening to public would make an efficient National Auditimpossible and therefore completely or conditionally denied the com-plainants' requests to observe, such autonomous judgment must berespected, and the instant denial is not clearly without any reason orarbitrary to the extent that makes intervention of the Constitutional Court appropriate.

Three Justices objected the majority decision as follows:

[Dissenting Opinion of Justices Lee Young-mo and Ha Kyung-

chull]

The denial of the request to observe the National Audit proceed-ings is understood as based on a view that, if the complainants and their civic organizations evaluate the Assembly members conducting the National Audit and publicize their evaluations, the resulting psy- chological pressure on the Assembly members will make an efficientproceeding difficult. Such reason does not qualify as the justifiablegrounds for not opening the session to public, such as 'limitation on space' or 'the necessity for maintenance of order'. The instant de-nial of observation request departs from the scope of the discretionand violates the Complainants' freedom to observe or right to know.

[Dissenting Opinion of Kim Young-il]

According to the Constitution and the National Assembly Act,the Subcommittee proceedings can be held in behind closed doorsonly either when the Committee or the Subcommittee has passed aresolution to that effect or when the Chairperson makes a findingthat such opening to public is necessary for national security. Theprerequisites to not opening to public have not been satisfied at theNumbers Adjustment Subcommittee. Denying civic organizations'observation requests selectively for the reason that the civic organi-zations' evaluations cause damage to the political reputation of as-sembly members does not even satisfy the prerequisites to a limi- tation on observation under the National Assembly Act. Therefore,the decision not to allow observation at the Subcommittee and the National Audit violates the complainants' right to observe the pro-ceedings of the National Assembly, one of the rights to know.