Important Details of the Special Law on the Administrative Capital

“A Special Law for the Construction of the New Administrative Capital” has been confronted by the question of whether it can be a foundation for the relocation of the administrative capital, which has been pushed by the current administration.

The core of the dispute centers on the fact that the special law can be considered either as a “substantive law” which contains specific rights and responsibilities, or as an “adjective law,” which simply stipulates the procedures and methods of implementation of such rights.

Apart from this, constitutional scholars point out that the special law lacks substantive and adjective rationality.

--“It cannot be a basis for the relocation of the administrative capital.”

Those who insist that “the special law is an adjective law” emphasize the fact that the current relocation of the administrative capital is indeed “a transfer of the capital.”

Originally, the purpose of the special law is to prevent the overcrowding of the capital and to promote balanced regional development by relocating a part of the administrative branches. Nonetheless, the National Assembly and the Supreme Court are subjects of relocation, thus considerably expanding the scope of the move, which can be regarded as a capital transfer in practice.

Ultimately, it is inconceivable with respect to the constitutional system that “The Construction Law” can proceed based on itself since the law only stipulates necessary procedures and methods of relocation of the administrative capital without a parent law of the capital transfer law. They further argue that one cannot be prosecuted only with the Criminal Procedure Code (an adjective law) without having the Criminal Law (a substantive law), which stipulates the subjects and the extent of punishments.

Dr. Huh Young, a constitutional professor at Myongji University, pointed out, “It is beyond the purpose and scope of the special law, which was enacted to relocate the administrative capital, since the administration is pushing the apparent capital transfer with the law.” Another constitutional professor who asked for anonymity mentioned, “It has a strong basis” towards an argument that the special law is only an adjective law.

--“It is a substantive law”

There are also fierce contending arguments. Article 6 of the special law stipulates the organizations to be relocated, the schedule, the procedures, and other details. Moreover, the law contains a number of substantive clauses, such as Article 8 that specifies possible sites for the relocation.

In particular, the Presidential Committee on Administrative Capital Relocation has been entrusted with such various rights as performing primitive research on possible sites for the relocation and restricting construction permission for the relocation sites, which are all regarded as substantive rights. Thus, the law must be interpreted as a substantive law. A lawyer with a constitutional research background mentioned, “It is inconceivable to view the law as an adjective law.”

--“Lacking substantive and adjective rationality.”

Dr. Choi Dae-kwon, a senior constitutional scholar at Seoul National University, said, “A capital transfer is not a matter that can be determined by a majority in the National Assembly.” The location of the capital falls under the core concepts of the constitution such as sovereignty and territory despite if it is stipulated in the constitution. Therefore, the capital relocation is not a matter that can be progressed with a law enacted by the National Assembly. Rather, it is a matter that needs to be determined by a national referendum.

Dr. Choi continued, “The law lacks adjective rationality in that it is politically motivated to be conscious of voters in Chungchung Province, which led to its enactment without a public hearing.”

Soo-Hyung Lee Sang-Rok Lee sooh@donga.com myzodan@donga.com