Bill PassageCase

(12-1 KCCR 115, 99Hun-Ra1, February 24, 2000)

In this case, Vice Chairman of the National Assembly sitting onbehalf of the Chairman (respondent) announced the passage of thebills while some assembly members were disrupting the conducting ofthe proceeding, and the Constitutional Court reviewed whether suchpassage infringed the assembly members' power to deliberate andvote on the bills.

A. Background of the Case.

(1) The Constitution defines 'competence disputes between stateagencies' as one of the competence disputes under the jurisdiction

of the Constitutional Court. The Constitutional Court Act enumerates'competence disputes between the National Assembly, the Administration, the Court, and the Central Election Commission' as the onlysubject matter for 'review of competence disputes between stateagencies.'

The Constitutional Court in 1995 dismissed an individual assembly member's competence dispute against Chairman of the National Assembly for being outside its jurisdiction granted by the Constitution or the Constitutional Court Act on the ground that the Chairmanor a member of the National Assembly is only a componental entityconstituting a state agency, the National Assembly. However, in1997, the Constitutional Court departed from its precedent in a caseof the same type, and asserted jurisdiction over a competence disputebetween a member and Chairman of the National Assembly on theground that it qualifies as a competence dispute between state agencies under the Constitution. In 1998, the Constitutional Court confirmed the changed precedent.

(2) According to the former National Assembly Act, the Chairmancan ask whether there is any objection to an agenda item, and upon finding no objection, can announce the passage of a bill. If there isan objection, the Chairman must follow a stand-to-vote, a nonanonymous vote, an anonymous vote, and other formal measures ofvoting.

The deliberation on a bill in our National Assembly centersaround committees. The reviews and resolutions of the relevantStanding Committees are almost always passed at the Plenary Sessions. Most bills on agenda are passed unanimously upon all parties'consent including the incumbent and all opposition parties.

In this case also, all the parties had agreed that the bills wouldbe deliberated and voted on at their respective Committees and wouldbe passed without any objection at the Plenary Session. However,just before the opening of the Plenary Session, a certain incident of political significance unrelated to the bills took place and the members of the largest opposition party, not having the majority, changedtheir minds and passed a party resolution that they will block thepassage of the bills. According to the party resolution, the members of the opposition party denied the Chairman and the incumbent partymembers the entrance to the Plenary Session Hall. The incumbentparty members, who constituted the quorum under the National Assembly Act (the quorum forresolutionbeing the majority of thosepresent), forced their way through the opposition party members intothe Plenary Session Hall. Soon thereafter, the Vice Chairman wasdelegated the right to conduct the proceeding by the Chairman. The Vice Chairman, amidst the disruptions of the opposition party members, received each bill into the agenda, asked whether there is anyobjection, and, as soon as hearing one assembly member announce'no objection', announced the passage of the bill.

The petitioners, the opposition party members, filed this competence dispute, on the ground that, when the Vice Chairman askedwhether there was any objection to each bill, they clearly announcedtheir objections and yet the Vice Chairman ignored the objections andannounced the bills had passed unanimously, violating their power todeliberate and vote on bills.

B. Summary of the Decision

When the Constitutional Court reviewed this case, seven Justicesapproved the standing of the petitioners but four of them denied andthree of them upheld the dispute. The remaining two Justices deniedthe standing and dismissed the case.

(1) The majority opinion of seven Justices on the standing

Disputes between Chairman of the National Assembly and itsmembers are not simply internal problems between the two constituents of the National Assembly but disputes between separate stateagencies under the Constitution. There is no other means of resolving them than competence disputes. This Court has adhered to theprecedent that Chairman of the National Assembly and its memberscan be the parties to competence disputes defined by the Constitution,and has no reason to depart from that.

(2) Denial decision of four Justices

In this case, the minutes of the Plenary Session shows only that a few assembly members answered 'no objection' to the Chairman'squestion and that there was 'commotion in the hall.' It does notshow that anyone explicitly stated his/her objection. The entry of 'commotion in the hall' cannot be accepted as an objection. Thereis no other evidence to accept the commotion as the petitioners'statement of objection.

According to the National Assembly Act, the minutes of thePlenary Session transcribe in short-hand all statements of the proceeding without omission from the beginning and to the end of theSession. They also record the plan of proceeding, the items toreport, and items on agenda, and all other matters concerning theSession. Also, the entries on the minutes and any objection relatedto correct them are to be decided on through resolution at PlenarySessions pursuant to certain procedures. Nonetheless, the petitionersdid not file any objection to the entries on the minutes.

The minutes are official records of a meeting, and are powerful evidence in case of a dispute over the meeting. The effect of resolution, decision, election, and other actions at a meeting is to beproven by entry on the minutes. Therefore, the Chairman, the ViceChairman acting

as a chairman, a Chairman-pro-tem, the ExecutiveDirector or his/her representative sign and fix their seals on theminutes to authenticate the content of the minutes, which are thenstored in the National Assembly.

The Constitutional Court must respect the autonomy of the National Assembly, and cannot but help relying on the entries on theminutes of the Plenary Session of the National Assembly in findingfacts concerning the passage of bills. We find no evidence contrary.

Therefore, in absence of any evidence that the Vice Chairman'spassage and announcement of the bills violated the Constitution orstatutes, the petitioners' competence dispute based on the allegationsof an infringement on their power to deliberate and vote must bedenied.

(3) Upholding Decision of Three Justices

If, as in this case, there is a dispute among the parties as tothe accuracy of the minutes of the Plenary Session of the NationalAssembly, and other circumstances reduce the reliability of the entries on the minutes, the Constitutional Court must not be tied downto the entries on the minutes and must field all materials andcircumstances produced at trial and decide in light of sound common sense and experience.

In view of the entry of 'commotion in the hall' on the minutes,and other materials produced at trial and various circumstances ofthis case, we find it sufficient to find that some petitioners answered'I have an objection' when the Vice Chairman of the National Assembly asked the members for any objection to each bill. Therefore,as the acting Chairman, he should have conducted an official votepursuant to the National Assembly Act but announced the passageof the bills, refusing to register any objection. He unambiguouslyviolated the National Assembly Act and infringed the petitioners'right to vote on the bills in this case.

(4) Dissenting Opinions of Two Justices on the Standing

A correct reading of the Constitution dictates that those agenciesnot enumerated in the Constitutional Court Act or those lower-levelagencies within the enumerated agencies cannot be the parties tocompetence disputes even if they are in positions to exercise publicauthority. We, two Justices, have adhered to this view through asimilar line of cases, and find no reason to change our minds.