Case on the National Assembly Advancement Act

[2015Hun-Ra1, May 26, 2016]

In this case, members of the National Assembly belonging to the ruling Saenuri Party requested adjudication on the competence of the National Assembly Speaker, etc., claiming that their power to deliberate and vote on bills had been infringed upon. The Court dismissed the petition, on the grounds that the refusal of the respondent, the National Assembly Speaker, to designate an examination period for bills on December 17, 2014 and January 6, 2016, lacked legal prerequisites and was therefore nonjusticiable.

Background of the Case

1. The plaintiffs are members of the 19th National Assembly belonging to the negotiating party of the Saenuri Party, while one of the plaintiffs, Na ○-Rin, is a member of the National Assembly’s Strategy and Finance Committee.

2. On December 9, 2014, 146 members of the National Assembly including the plaintiffs requested that 11 legislative bills pending in each competent standing committee, including the North Korean Human Rights Act, be designated an examination period and referred to theplenary session (hereinafter referred to as “ex officioproposal”). However,on December 17, 2014, the respondent – the National Assembly Speaker – replied to the effect that anex officioproposal was not possible for the legislative bills mentioned above, as they did not satisfy the requirements for designation of an examination period prescribed in Article 85 Section 1 of the National Assembly Act.

3. On January 15, 2015, 11 members of the Strategy and Finance Committee, including plaintiff Na ○-Rin, submitted a motion to request that the respondent – the chairperson of the Strategy and Finance

Committee – designate the Service Industry Development Bill as an agenda for expeditious processing. However, on January 29, 2015, the respondent sent a reply to the effect that the above motion could not be put to vote as per Article 85-2 Section 1 of the National Assembly Act, as it was not signed by the majority of all incumbent National Assembly members of the Strategy and Finance Committee (14 persons).

4.Thereupon, on January 30, 2015, the plaintiffs requested adjudicationon competence, claiming that the provision “agreement with the representative National Assembly members of each negotiating party” in Article 85 Section 1 Item 3 of the National Assembly Act and the provision “affirmative votes of at least 3/5 of all incumbent National Assembly members” in Article 85-2 Section 1 of the same Act were unconstitutional for violating the rule of majority under the Constitution, and that the respondents’ acts of refusal based on the unconstitutional provisions of the National Assembly Act mentioned above infringed on the plaintiffs’ power to deliberate and vote on bills as National Assembly members.

5. Meanwhile, on December 16, 2015, 157 members of the Saenuri Party, including the plaintiffs, requested that the respondent – the National Assembly Speaker – refer ten legislative bills, including the Service Industry Development Bill, through anex officioproposal. However, on January 6, 2016, the respondent replied that anex officioproposal could not be made for the legislative bills mentioned above, as they did not satisfy the requirements for designation of an examination period prescribed in Article 85 Section 1 of the National Assembly Act.

6. On January 11, 2016, the plaintiffs added to the relief sought the affirmation of the infringement of the plaintiffs’ competence regarding, and invalidity of: ① the refusal of the respondent – the National Assembly Speaker – on January 6, 2016, to designate an examinationperiod for ten legislative bills including the Service Industry Development

Act bill; and ② the declaration of the adoption, by the respondent – the National Assembly Speaker – of Article 85-2 of the National Assembly Act in the amendment bill to the legislative bill for the partial amendment of the National Assembly Act, in the 307th session of the National Assembly on May 2, 2012.

Subject Matter of Review

The subject matter of this case is whether: ① the amendment by the National Assembly of the Republic of Korea of Article 85 Section 1 and Article 85-2 Section 1 of the National Assembly Act by Act No. 11453 on May 25, 2012 (hereinafter referred to as the “Amendment to the National Assembly Act”); ② the refusal of the respondent – the National Assembly Speaker – to designate an examination period for 11 legislative bills including the North Korean Human Rights Bill on December 17, 2014 (hereinafter referred to as the “First Refusal to Designate an Examination Period”) and to designate an examination period for ten legislative bills including the Service Industry Development Bill on January 6, 2016 (hereinafter referred to as the “Second Refusal to Designate an Examination Period”; hereinafter the two refusals are collectively referred to as the “Refusals to Designate Examination Periods”); ③ the refusal of the respondent – the chairperson of the Strategy and Finance Committee – on January 29, 2015, to put to vote the motion to designate the agenda for expeditious processing regarding the Service Industry Development Bill, on the ground that the motion was not signed by the majority of all incumbent members of the National Assembly of the Strategy and Finance Committee (hereinafter referred to as the “Refusal to Execute a Vote”); and ④ the declaration of the respondent – the National Assembly Speaker – to adopt Article 85-2 of the National Assembly Act in the amendment bill to the legislative bill for the partial amendment of the National Assembly Act (hereinafter referred to as the “Declaration of Adoption”) in the 307th session of the National Assembly on May 2, 2012, infringe on the

plaintiffs’ power to deliberate and vote on bills, and whether the Declaration of Adoption is void.

Provisions at Issue

National Assembly Act (amended by Act No. 11453 on May 25, 2012)

Article 85 (Examination Period)

(1) In any of the following cases, the Speaker may designate an examination period on cases to be tabled or that have been tabled to the committee. In such cases, in cases falling under Items 1 or 2, the Speaker may designate the examination period only on cases related to the applicable Item in consultation with the representative National Assembly members of each negotiating party.

1. Where a natural disaster occurs;

2. Where a war, an incident, or a national emergency occurs;

3. Where the speaker reaches an agreement with the representative National Assembly members of each negotiating party.

(2) In cases falling under Section 1, if the committee fails to complete the examination within the fixed period without justifiable grounds, the Speaker may table it to another committee or directly to the plenary session after hearing an interim report.

Article 85-2 (Expeditious Processing of Agendas)

(1) Where it is intended to designate any agenda referred to the committee (including an agenda referred to the Legislation and Judiciary Committee for examination of systems and wording) as the agenda to be expeditiously processed under Section 2, a National Assembly member shall submit to the Speaker the motion for request for designation of the agenda for expeditious processing which was signed by a majority of all incumbent National Assembly members (hereinafter referred to as “motion for designation of the agenda for expeditious processing” in this Article), and members of the competent committee responsible for an

agenda shall submit to the chairperson of the competent committee the motion for designation of the agenda for expeditious processing signed by a majority of all incumbent National Assembly members of the competent committee. In such cases, the Speaker or the chairperson of the competent committee responsible for an agenda shall without delay pass a resolution on the motion for designation of the agenda for expeditious processing by secret vote, with the affirmative votes of at least 3/5 of all incumbent National Assembly members or of at least 3/5 of all incumbent National Assembly members of the competent committee responsible for the agenda.

(2) When the motion for designation of the agenda for expeditious disposition is approved under the latter part of Section 1, the Speaker shall designate the relevant agenda as the one to be examined within the period specified under Section 3. In such cases, when the committee formulates an alternative to the agenda designated under the former part of this Section (hereinafter referred to as “agenda for expeditious processing”), the aforementioned alternative shall be deemed an agenda for expeditious processing.

Summary of the Decision

1. Adjudication on the Amendment to the National Assembly Act

In adjudications on competence disputes that deal with the enactment and amendment of laws, the National Assembly has standing as a respondent. Therefore, the plaintiffs’ request for adjudication on the amendment to the National Assembly Act against the National Assembly Speaker and the chairperson of the Strategy and Finance Committee is nonjusticiable for being a claim against subjects that do not have standing as respondents.

2. Adjudication on the Declaration of Adoption

The plaintiffs’ request to change the relief sought was submitted to the Constitutional Court on January 11, 2016. The request for adjudication on the Declaration of Adoption was made more than 180 days after the Declaration of Adoption, which was made on May 2, 2012, and is therefore nonjusticiable for clearly exceeding the period for request.

3. Adjudication on the Refusal to Execute a Vote

Article 85-2 Section 1 of the National Assembly Act prescribes that, only when a motion submitted to the chairperson of the competent committee requesting the designation of the agenda for expeditious processing fulfills the requirement of being signed by the majority of all incumbent National Assembly members of the competent committee, does the chairperson become responsible for executing a secret vote, and do the National Assembly members of the competent committee acquire the authority to vote on the motion. In this case, there is no possibility that the plaintiff Na ○-Rin’s power to vote on the motion to designate the agenda for expeditious processing will be directly violated by the Refusal to Execute a Vote, for the motion does not fulfill the requirement of being signed by the majority of all incumbent National Assembly members of the competent committee. Even if the provision of Article 85-2 Section 1 of the National Assembly Act requiring three-fifths consent of all incumbent National Assembly members is pronounced to be unconstitutional, this does not mean that the respondent – the chairperson of the Strategy and Finance Committee – takes on the duty to execute a vote on a motion to designate an agenda for expeditious processing that does not fulfill the designation requirement. Thus, the unconstitutionality of the clause has no effect on the Refusal to Execute a Vote. Therefore, the request for adjudication on the Refusal to Execute a Vote is nonjusticiable, for the refusal does not infringe on or pose the risk of infringing on the plaintiff Na ○-Rin’s

power to vote on the motion to designate the agenda for expeditious processing.

4. Adjudication on the Refusals to Designate Examination Periods

The first issue for consideration is as to whether the Refusals to Designate Examination Periods infringe or risk infringing on the plaintiffs’ power to deliberate and vote on bills. The purpose of the power to make anex officioproposal under Article 85 Section 1 of the National Assembly Act is to recover a constitutional disorder that creates an emergency in the National Assembly, and this power falls under the authority of the National Assembly Speaker to regulate proceedings. It is perceived as an emergency, exceptional procedure in Korea’s National Assembly, which revolves around committees when it comes to the examination of bills. The grounds for designation presented in each of the Items of Article 85 Section 1 of the National Assembly Act merely restrict the Speaker’s power to make anex officioproposal, and do not impose any restriction on the power of National Assembly members to deliberate and vote on bills. The risk of violating the plaintiffs’ power to deliberate and vote on bills will only materialize if the relevant bill is referred to the plenary session, and the National Assembly Speaker has the right not to exercise his or her power to make anex officioproposal even if there are grounds for designation under Article 85 Section 1 of the National Assembly Act. Thus, it is not possible for the plaintiffs’ power to deliberate and vote on bills to be directly violated by the Refusals to Designate Examination Periods.

Next, we examined whether the Refusals to Designate Examination Periods infringe or risk infringing on the plaintiffs’ power to deliberate and vote on bills if Article 85 Section 1 Item 3 of the National Assembly Act is found to be unconstitutional. Even if Article 85 Section 1 Item 3 of the National Assembly Act, which prescribes, “Where the Speaker reaches an agreement with the representative National Assembly members of each negotiating party” as the requisite for designating an

examination period, is pronounced unconstitutional for violating the rule of majority, the designation of an examination period for a bill still remains the authority of the Speaker, as shown above. Thus, the Speaker does not immediately assume the obligation to designate an examination period on the bill. Therefore, the constitutionality of Article 85 Section 1 Item 3 of the National Assembly Act has no effect on the validity of the Refusals to Designate Examination Periods.

Lastly, we examined whether the Refusals to Designate Examination Periods infringe or risk infringing on the plaintiffs’ power to deliberate and vote on bills if the legislative omission by the National Assembly Speaker, of failing to designate an examination period on a bill for which the majority of all incumbent National Assembly members has requested the designation of an examination period as per Article 85 Section 1 of the National Assembly Act (hereinafter referred to as the “Legislative Omission at Issue”), is found to be unconstitutional. The Legislative Omission at Issue is a ‘genuine legislative omission’ in which a vacuum in law has arisen due to the failure of the legislator to legislate on an emergency procedure that can bypass the examination of committees upon the request of the majority of all incumbent National Assembly members. Therefore, the constitutionality of the Legislative Omission at Issue has no connection with Article 85 Section 1 of the National Assembly Act, and its constitutionality has no effect on the Refusals to Designate Examination Periods. Furthermore, given the functional limitation of the Constitutional Court in its relationship with the National Assembly, which is a political and democratic institution that holds primary formative power in fulfilling the Constitution, it is inappropriate for the Constitutional Court to extend its scope of review to the constitutionality of the Legislative Omission at Issue, which does not serve as legal grounds. Thus, it is advisable to refrain to the utmost extent from exercising judicial review and to provide due deference to the autonomy of the National Assembly in controlling proceedings. Even if the constitutionality of the Legislative Omission at Issue is a matter for preliminary consideration, we cannot say this indicates that there is

an obligation as per the letter or interpretation of the Constitution that the National Assembly Speaker must designate an examination period for bills and refer them to the plenary session, in cases where the majority of all incumbent National Assembly members have made such a request. Thus, Article 85 Section 1 of the National Assembly Act cannot be considered to go against the rule of majority, or indeed parliamentary democracy, for not prescribing such content.

On these grounds, the Refusals to Designate Examination Periods do not infringe or risk infringing on the plaintiffs’ power to deliberate and vote on bills. Further, the unconstitutionality of Article 85 Section 1 Item 3 of the National Assembly Act, which serves as the legal grounds, or of the Legislative Omission at Issue which fails to prescribe the compulsory designation of an examination period for bills that have been requested for designation by the majority of all incumbent National Assembly members, does not provide grounds for the Refusals to Designate Examination Periods to be considered as having the possibility to infringe upon the plaintiffs’ power to deliberate and vote on bills. Therefore, the request for adjudication on the Refusals to Designate Examination Periods is nonjusticiable.

Summary of Concurring Opinion and Opinion for Denialof Two Justices on the Refusal to Designate an Examination Period

1. Review of Legal Prerequisite

The Second Refusal to Designate an Examination Period fundamentally deprives the plaintiffs, who are part of the 157 persons that would constitute the majority of all incumbent National Assembly members, from exercising power to deliberate and vote on bills at the plenary session. Therefore, this clearly indicates the likelihood that the plaintiffs’ power to deliberate and vote on bills may be infringed upon. This is because the 157 persons that exceed the majority of sitting members can vote once a bill is designated an examination period and is referred to

the plenary session. However, the First Refusal to Designate an Examination Period is a refusal against the request of 146 National Assembly members, which falls short of the majority of incumbent members, to designate an examination period and refer the bill to the plenary session. Therefore, there is no likelihood that the plaintiffs’ power to deliberate and vote on bills has been or will be infringed upon.

2.Review on Merits of the Second Refusal to Designate an ExaminationPeriod

Article 85 Section 1 of the National Assembly Act, which serves as the legal grounds for the Second Refusal to Designate an Examination Period, belongs to the domain of the National Assembly’s inherent autonomous legislative power, and must be guaranteed the utmostautonomy. Thus, it is up to the legislator’s extensive legislative discretionunder which requirements, and through what manner, theex officioproposal system will be adopted. In a National Assembly that centers on committees, the examination of Standing Committees is an extremely important process in the enactment of laws. Thus, theex officioproposal system, which refers directly to the plenary session bills that have not been completely reviewed by the committees, is a very exceptional, extraordinary legislative procedure. Furthermore, the normal quorum is merely a voting method used by the National Assembly for practicing the rule of majority, and cannot be considered a principle or rule under the Constitutionper se. Therefore, it is up to the National Assembly’s autonomous discretion whether to choose qualified majority voting or simple majority voting when drafting laws on its own proceedings. Moreover, Article 85 Section 1 of the National Assembly Act cannot be concluded as the reason for the failure to solve a legislative impasse in committees, for a legislative impasse is merely a factual issue, not a legal issue. Thus, Article 85 Section 1 of the National Assembly Act cannot be said to violate the Constitution for reasons that the National Assembly is running contrary to the rule of majority or the principle of

parliamentary democracy by severely deviating from or abusing the power of legislative discretion, by going beyond its limits of autonomy. The Second Refusal to Designate an Examination Period, which complies with Article 85 Section 1 of the National Assembly Act, does not infringe on the plaintiffs’ power to deliberate and vote on bills, and therefore should be dismissed.

Summary of Opinion for Denial and Opinion for Acceptanceof Two Justices on the Refusal to Designate an Examination Period

1. Whether the Request for Adjudication on the Competence Dispute on the Refusals to Designate Examination Periods Is Justiciable

The Refusals to Designate Examination Periods have made it impossible for the bills that were requested to be designated an examination period to be referred or proposed to the plenary session, and this has incurred a severe setback for the plaintiffs, who are National Assembly members, in exercising their power to deliberate and vote on those bills in the plenary session. Thus, there is a possibility that the authority of the plaintiffs may be infringed upon.

2. Whether the Refusals to Designate Examination Periods Infringe on the Plaintiffs’ Authority

In Korea, the final decision on a bill in the National Assembly is made in the plenary session, not by the committees, under the principle of the Constitution. Thus, agendas in an impasse at the committee stage can be referred and proposed to the plenary session at the request of the plenary session, so the final decision-making power on the bill should lie with the plenary session; a National Assembly member’s power to deliberate and vote on bills should likewise be ultimately exercised in the plenary session; and unless specified by the Constitution or law, the majority of all incumbent National Assembly members can vote on all agendas in the

plenary session. Judging by the above, there should be an emergency processing procedure where if an agenda in an impasse at the committee stage is requested to be referred and proposed to the plenary session by the majority of incumbent National Assembly members that can vote in the plenary session, it is subject to obligatory referral and proposal so that all National Assembly members can deliberate and vote on the agenda involved. Despite this, Article 85 Section 1 of the National Assembly Act does not contain any stipulation that when the majority of incumbent National Assembly members request the designation of an examination period for an agenda at an impasse at the committee stage, the Speaker is obliged to designate an examination period. This violates the rule of majority as the decision-making method of the National Assembly under Article 49 of the Constitution, and the principle under the Constitution that final decisions are made in the plenary session of the National Assembly. Furthermore, it violates the principles of people’ssovereignty, of representative democracy, and of parliamentary democracy.

The First Refusal to Designate an Examination Period was made against a request to designate an examination period by 146 National Assembly members including the plaintiffs, which falls short of the majority of incumbent members. This indicates that the above refusal does not infringe upon the plaintiffs’ power to deliberate and vote on bills. Thus, the request for adjudication on this refusal was dismissed for a lack of grounds. Meanwhile, the Second Refusal to Designate an Examination Period was made against a request for designation of an examination period by the majority of the incumbent National Assembly members, but was rejected by the Speaker, the respondent, based on the unconstitutional Article 85 Section 1 of the National Assembly Act. Thus, this violates the Constitution, and infringes upon the plaintiffs’ power to deliberate and vote on bills. Therefore, this request for adjudication is accepted as justified.

3. Decision of Nonconformity to the Constitution of Article 85 Section 1 of the National Assembly Act

If the Constitutional Court declares the simple unconstitutionality of Article 85 Section 1 of the National Assembly Act, it would instantly lose effect and create a vacuum in the law. Thus, it is advisable that the Court deliver a decision of nonconformity to the Constitution but order the continued application of the above-mentioned provision until an amendment is made.