Minority Judge Jeon Hyo-sook

One of the nine judges of the Constitutional Court, Jeon Hyo-sook, made a sole unique ruling on the constitutional complaint of the Special Law on Administrative Capital Construction, “The Special Law is not in violation of the Constitution or the basic rights of the petitioners, so the case should be overruled.”

Judge Jeon said that she disagreed with the other judges, who argued that the capital relocation project violates the voting right essential to amendment of the Constitution (Constitution Article 130) and the voting right over major national policies (Constitution Article 72).

She viewed the Constitution as aiming to maximize the freedom and rights of people and that the location of the capital is a mere tool to realizing its purpose, therefore it does not have to be those who enact or amend the Constitution who should be making the decision. She went on to point out that drawing a constitutionally justifiable proposition of “Seoul must be the capital” from the customary fact of “Seoul is the capital” is a jump of logic.

Judge Jeon added, “Even if the fact that Seoul is the capital may be common law, common law does not take on the same effect of statutory law, which reflects the public’s viewpoint through Constitution establishment procedures.”

She says that in a situation in which the public’s true intention is hard to confirm, the overwhelming passage of the Special Law in the National Assembly, which represents the public’s opinion, must be respected.

She also said that the discretion of the president on whether or not to put a major national policy up for referendum is an invariable unique authority regardless of the agendas. The president is granted the discretion under the Constitution, which means he cannot be accused for abusing the authority by using the rationale of the administrative principle of law.

Jeon revealed that arguments such as violation of taxpayers’ rights and property rights by imposing big financial burden of relocation cost and infringement on equity rights of residents outside the new administrative capital do not satisfy the requirements of direct relevance or immediacy to constitute violation of the Constitution.

Sang-Rok Lee myzodan@donga.com