substantive rationality or legitimacy under the present constitution. In addition, the
KSC ruled that in a constitutionalist democracy, the notion of “act of state,”
an equivalent of “political questions” according to US constitutional law, can be
recognized only to the extent that it is not beyond the rule of law, and can
be subject to judicial review, though in relatively less strict terms. On that ground,
it is held that the promulgation of an emergency decree should not be excluded
from judicial review though it could be seen as an “act of state.” Furthermore,
the KSC regarded the said decree as an order, though it has been treated as having
statutory effect because in the Constitution the legislature has not been allowed to
approve or to request repeal. This approach was known to provoke the KCC, which
has been hesitant to clarify the character of presidential emergency decrees because
if such a decree, having statutory effect, can be seen as an Act, then the KCC, not
the KSC, has the constitutional power to review the constitutionality of the Act.
On March 21 , 2013 , the KCC declared that it is endowed with an exclusive power to
review presidential emergency decrees based upon the 1972 constitution. It also
held that the Presidential Emergency Decrees No 1 ,No 2 , and No 9 prohibiting
political expression and activity pursuing constitutional revision violate the
principle of popular sovereignty and the free and democratic basic order.
14
The constitutional status of the president challenging the Election
Commission’s warningIn 2007 , the constitutional status of the president was once again challenged.
President Roh Moo-hyun filed a constitutional complaint to the KCC alleging
that his freedom of political speech had been breached by the warnings of the
national Election Commission which relied upon an unconstitutional provision of
election law. On June 2 , 2007 , President Roh, attending an open meeting organized
by his supporters, made some controversial comments on presidential candidates of
a major opposition party, such as “it will be a shame if foreign newspapers
comment that the Korean leader is the daughter of a dictator”; “It will be a disaster
if the GNP win the presidential election because this irresponsible party will
strengthen regionalist policies.” On June 8 , 2007 , he made another political speech
at an awards convocation for his honorary doctoral degree, saying that the “Korean
people must not be deceived by the tax-cut policy and private-investment-oriented
Grand Canal Proposal of GNP presidential candidate Lee Myong-bak.” Upon the
GNP’s denouncements of President Roh, the Election Commission confirmed at
separate sessions that his speeches were against the general neutrality principle
stipulated in Article 9 of the Public Officials Election Act, and requested him to
restrain himself from making speeches similar to those at issue.
(^14) Constitutional Court Decision 2010 Hun-Ba 132 , March 21 , 2013.