Constitutional custom

Judicial Yuan Interpretation No. 387

Order promulgating the interpretation October 13, 1995 (Republic of China Year 84)

Question presented Must cabinet members resignOther constitutional principle en masse after legislative elections?

Holding

The Executive Yuan consists of a President (the Premier), a Vice President, the heads of ministries and commissions, and a number of ministers without portfolio. The Premier is nominated by the President of the Republic and appointed with the consent of the Legislative Yuan. The Vice President of the Executive Yuan, the heads of ministries and commissions, and ministers without portfolio are appointed by the President of the Republic upon the Premier's recommendation.

These arrangements are expressly prescribed in Articles 54, 55, paragraph 1, and 56 of the Constitution.

Article 57 of the Constitution also sets out in detail the Executive Yuan's responsibility to the Legislative Yuan.

Because the Premier's appointment requires the Legislative Yuan's consent, and the Premier bears political responsibility to that body, the principles of government based on public opinion and responsible government require that the Premier mustOther constitutional principle submit a resignationOther constitutional principle to the President of the Republic before the first sitting of the newly elected Legislative Yuan following the expiry of its predecessor's term.

The Vice President of the Executive Yuan, the heads of ministries and commissions, and ministers without portfolio are appointed by the President of the Republic upon the Premier's recommendation. As members of the Executive Yuan Council who participate in executive policymaking, they must also resignOther constitutional principle together with the Premier.

Reasoning

Under Article 57 of the Constitution, the Executive Yuan is responsible to the Legislative Yuan.

Government based on public opinion and responsible government are essential elements of democracy. In a modern state governed by the rule of law, the formation of a government and the conduct of public affairs are legitimate only when grounded in public opinion.

Accordingly, when legislators are elected anew upon the expiry of their terms, the highest executive organ must be reorganized to reflect the latest expression of public opinion, in keeping with the purpose of democratic government.

The Executive Yuan consists of a Premier, a Vice President, the heads of ministries and commissions, and a number of ministers without portfolio. The Premier is nominated by the President of the Republic and appointed with the consent of the Legislative Yuan. The Vice President of the Executive Yuan, the heads of ministries and commissions, and ministers without portfolio are appointed by the President of the Republic upon the Premier's recommendation.

These arrangements are expressly prescribed in Articles 54, 55, paragraph 1, and 56 of the Constitution.

The Executive Yuan has a duty to present its policy program and administrative reportsOther constitutional principle to the Legislative Yuan. If the Executive Yuan requests reconsideration of a resolution and two-thirds of the legislators present uphold the original resolution, the Premier must either accept that resolution or resign. Article 57 of the Constitution prescribes these matters in detail.

The Premier is nominated by the President of the Republic and appointed with the consent of the Legislative Yuan, to which the Premier bears political responsibility. This is the institutional arrangement established by our Constitution among the President of the Republic, the Executive Yuan, and the Legislative Yuan.

Because appointment of the Premier requires the Legislative Yuan's consent, the principle of government based on public opinion requires the Premier to submit a resignationOther constitutional principle before the first sitting following each legislative election held at the expiry of the previous term. This enables the President of the Republic to assess the political situation resulting from the election, nominate a new candidate, and request the Legislative Yuan's consent, thereby reflecting the direction of public opinion.

The Premier recommends the Vice President of the Executive Yuan, the heads of ministries and commissions, and ministers without portfolio for appointment by the President of the Republic in accordance with the Premier's political outlook. Under Article 58 of the Constitution, these officials attend meetings of the Executive Yuan Council and participate in executive policymaking. They must therefore submit their resignations to the President of the Republic together with the President of the ExecutiveUnrelated / insufficient Yuan, to give effect to responsible government.

As for heads of agencies subordinate to the Executive Yuan who do not hold ministerial status, their resignations are to be handled through ordinary administrative procedures. Those whose terms of office are expressly fixed by law are, of course, unaffected by the aforementioned collective resignation of the ExecutiveUnrelated / insufficient Yuan.

Chair of the Council of Grand Justices: President 施啟揚 Grand Justices: 翁岳生, 劉鐵錚, 吳庚, 王和雄, 王澤鑑, 林國賢, 施文森, 城仲模, 孫森焱, 陳計男, 曾華松, 董翔飛, 楊慧英, 戴東雄, 蘇俊雄

Dissenting opinion: Justice Wu Geng (吳庚)

Whether this Yuan should issue a substantive interpretation in this case is highly debatable as a matter of legal principle. I therefore submit the following dissenting opinion.

The powers of every organ of the state must be limited; the powers exercised by the judiciary are no exception. Such limits arise not only from express constitutional or statutory provisions but also from the nature of the power itself. That judicial review is inherently limited is recognized in legal scholarship and has also developedOther constitutional principle into related doctrines in the practical operation of advanced states governed by the rule of law. These include the political question doctrine in the United States, sovereign acts excluded from judicial jurisdiction in Germany (gerichtesfreier Hoheitsakt), acts of government in France (actes de gouvernement), and acts of state in the United Kingdom. Some scholars in Taiwan use the Japanese term governing acts as an umbrella concept for these doctrines (Note 1). Since this case concerns theories relating to governing acts, a brief account of these foreign doctrines is necessary. In the United Kingdom, acts of state generally refer to acts connected with the exercise of sovereignty in foreign relations, or to prerogative acts of the executive that lie outside the courts' jurisdiction; courts cannot determine their legality or propriety (Note 2). In France, the doctrine of acts of government emerged from more than a century of decisions by the Conseil d'État. Although the category has no absolutely precise boundaries, it generally includes dealings between Parliament and the government, emergency measures concerning war or public security, dissolution of Parliament by the head of state, submission of questions to a referendum, pardons, diplomatic measures, and the interpretation and implementation of international treaties. Administrative courts have no jurisdiction to adjudicate such matters (Note 3). These two categories illustrate limits on the jurisdiction of British and French courts over highly political questions, but do not yet address the boundaries of constitutional review exercised by courts in countries such as the United States and Germany.

Typical examples in German law of sovereign acts excluded from judicial jurisdiction, sometimes simply called acts of government, include Parliament's election of the chancellor, verification of legislators' qualifications, and government reports to Parliament or responses to parliamentary questions. Although scholarship has not settled the scope and types of such acts, one feature is generally recognized: their political content means that supervision by a constitutional or administrative court would not clarify matters but would instead create confusion (Note 4). In the United States, the political question doctrine has long been an important principle of constitutional review. In disputes arising from relations between the United States and other countries, controversies over republican government in the states, the legality of electoral districting, determinations of legislators' qualifications, and questions about whether constitutional amendments have been ratified by the states, the Supreme Court has regarded the matter as one for the federal political branches—the President or Congress—to decide, rather than for judicial resolution. As to how a political question is identified and excluded from judicial review, Justice Brennan synthesized earlier precedents in a 1962 opinion as follows: A case appears to involve a political question where the Constitution expressly and demonstrably commits the issue to a corresponding political branch; where judicially discoverable and manageable standards for resolving it are lacking; where deciding it would require a policy determination on a matter clearly outside judicial discretion; where an independent judicial resolution would show a lack of respect for the relevant branches of government; where there is an unusual need to adhere unquestioningly to a political decision already made; or where divergent pronouncements by different branches on the same question could cause embarrassment (Note 5). When these criteria are met, the Supreme Court treats the issue as a non-justiciable political question.

The issue in this interpretation is whetherOther constitutional principle the Premier and ministers (the so-called cabinet members) should resign en masse when legislators are elected anew upon the expiry of their terms. I consider this a political question. Following this Yuan's precedent in Interpretation No. 328 concerning the nation's existingOther constitutional principle territory, no substantive interpretation should be issued, for the following reasons.

(1) This question concerns the three-way relationship among the President of the Republic, the Legislative Yuan, and the Executive Yuan. Its intensely political character is arguably unsurpassed among constitutional questions. If it can be treated as an ordinary constitutional doubt and interpreted by the judiciary, no matter will remain beyond judicial review. Comparative constitutional practice shows that the appointment or removal of a head of government by the head of state, the election or dismissal of a head of government by Parliament, and the timing of a cabinet's resignation to the head of state or Parliament are not decided by judicial organs, regardless of whether the theories of governing acts described above are adopted.

(2) Chapters V and VI of our Constitution regulate relations between the Executive Yuan and the Legislative Yuan in considerable detail. Yet they do not prescribe a term of office for the Premier or state whether, following legislative elections, the Premier should resign individually or the entire cabinet should resign collectively. At the time of constitution-making, this omission was deliberate, following the exampleOther constitutional principle of most countries with a premier and cabinet. It was not an evident constitutional gap: the intention was to leave the issue to actual political practice, without a rigid rule. Thus, when enacting the organic acts of the five Yuans, the Legislative Yuan expressly fixed terms for the Grand Justices and members of the Examination Yuan, whose terms were not specified in the constitutional text. But, respecting the Constitution's original intent, it made no provision for the terms of the Premier and ministers, or for whether they must leave office following legislative elections. Since the issue is not a constitutional gap, this Yuan should not use interpretation to fill a gap (Lueckenergaenzung).

(3) In parliamentary systems, the answer to whether a cabinet resigns collectively following parliamentary elections is, of course, affirmative. Yet, with very few exceptions—such as Article 70 of Japan's current Constitution and Article 69 of Germany's Basic Law—constitutions seldom expressly provide for this.

Presidential systems also haveOther constitutional principle cabinets, but it is well known that their members do not leave officeOther constitutional principle following parliamentary elections.

In systems combining presidential and parliamentary features, such as the French Fifth Republic, cabinet turnoverLongus ususConstitutional content regularlyLongus ususConstitutional content follows parliamentary elections and the inauguration of a new president. All these are naturally developed constitutional conventionsGeneral constitutional custom that respond to different circumstances.

Political conditions are as changeable as clouds, often shifting in unexpected ways. Parliamentary elections, for example, may be regular elections or elections called over a particular issue, usually after a deadlock between parties over a specific political question prompts dissolution of Parliament and an appeal to voters before the parliamentary term expires. If the cabinet wins such an issue-based election, it naturally continues in office and need not resignOther constitutional principle. After a regular election, too, where Parliament has only two major parties and the incumbent party again secures a majority of seats, the cabinet need not resign; this is the practiceConstitutional content in the United Kingdom.

Moreover, resignation may be either a genuine resignation or a courtesyOther constitutional principle resignation (protUnrelated / insufficient-okollarischer Zurecktritt). The former requires a new appointment; the latter requires only a written or oral expression placed on record.

Whether a resignation is genuine or a matter of courtesyGeneral constitutional custom depends entirely on constitutional conventionGeneral constitutional custom, with no written rule to follow (Note 6).

Our system of government was never wholly parliamentary. Following the constitutional amendments, it is especially difficult for it to operate as a parliamentary system. Moreover, the terms of the President of the Republic and legislators do not coincide. Positioned between them, the Executive Yuan should be left to the political branches to determine precisely when and in what manner it is to resign. This interpretation merely adds to the difficulty of resolving the matter politically.

(4) Legislators petitioned for this interpretation in March 1993 (Republic of China Year 82). At that time, the Legislative Yuan faced its first comprehensive reelection, and there was no precedent on whether the Executive Yuan should resign collectively. There was also some disagreement within the governing party. The matter was soon resolved, however, and both the Premier and cabinet members submitted their resignations. With the second Legislative Yuan now approaching the end of its term, the incumbent Premier has repeatedly stated that he would also resignOther constitutional principle after the election of the third Legislative Yuan. Thus, the question ofUnrelated / insufficient whetherOther constitutional principle the Executive Yuan should resign en masse following legislative elections no longer remains unresolved. No party currently objects to this solution, so it is clear that no substantive interpretation by the constitutional adjudicating organ is needed.

In sum, this interpretation concerns a typical political question or governing act. It fits Brennan's account: the Constitution evidently intends the matter to be resolved by the relevant political branches; courts lack consistent standards for judging such questions; the issue is outside judicial discretion and should not be decided by judicial organs; and a political decision that can be followed has already been made, so a judicial decision would show insufficient respect for the legislative and executive branches. The circumstances fit his criteria for political questions precisely. It may be argued that our Grand Justices engage in abstract constitutional interpretation, unlike the United States Supreme Court, which adjudicates concrete cases and controversies. In fact, the main differences between the systems concern what triggers judicial review and how proceedings are conducted. Since both fundamentally exercise judicial power, both must be subject to separation of powers and the inherent limits of judicial authority (Note 7). Moreover, there is now a consensus that constitutional interpretation by the Grand Justices should take a judicial form, as demonstrated by the replacement of the Council of Grand Justices Act with the Constitutional Interpretation Procedure Act. I have held my present office for more than ten years and have never favored judicial passivism. I have not confined myself to the text through originalism or interpretationism, nor will I do so in the future. My position that no substantive interpretation should be issued here is intended to emphasize the boundaries of judicial power and establish precedents to be followedUnrelated / insufficient when similar matters arise. As for the majority's reasoning, it reaches its conclusion by citing merely three or four relevant constitutional provisions, with little explanation. It fails to take a broad comparative approach (Komparative Auslegung), analyzing our system alongside the characteristics of presidential, parliamentary, dual-executive, or semi-presidential systems in other countries. That it may therefore fail to meet expectations is a further, secondary concern.

Note 1: See 林紀東, Preliminary Examination of Governing Acts, The Law Monthly, vol. 17, no. 3, pp. 1 ff.; 林錫堯, Governing Acts (1981), chapter 1; and Nobuyoshi Ashibe, Constitution, translated by 李鴻禧 (1995), pp. 301 ff.

Note 2: See E. S. C. Wade and A. W. Bradley, Constitutional and Administrative Law, London and New York, 1991, pp. 316–320.

Note 3: See C. Debbasch and J.-C. Ricci, Contentieux administratif, 6th ed., Dalloz, 1994, p. 58.

Note 4: See Schmidt-Assmann, in Maunz/Duerig, Grundgesetz, loose-leaf commentary, 7th ed., 1991, marginal nos. 77–81; also Wolff/Bachof/Stober, Verwaltungsrecht I, 10th ed., 1994, p. 622.

Note 5: Baker v. Carr, 369 U.S. 186, 217 (1962). The source gives the following English quotation:

[The English quotation is reproduced as supplied, including apparent transcription errors.] “Prominenton the surface of any case held to involve a political q-uestion is found a textually demonstrable condtitutionalcommitment of judically discoverable and manageable stan-derds for resolving it;or the impossibility of decidingwithout an initial policy deterination of a kind clearlyfor non-judical discretion ;or the impossibillity pf a c-ourt's undertaking independent resolution without express-ing lack of the respect due coordintate branches of gov-ernment;or an unusual need for unquestioning adherence toa political decision already made;or the potentiality ofembarrassment from multifarious pronounse ments by vario-us departments on one question.” For the interpretation of this passage, see also J. P. Mulhern, In Defense of the Political Question Doctrine, 137 U. PENN. L. REV. 106 (1988).

Note 6: See Klaus von Beyme, Die parlamentarischen Regierungssysteme in Europa, 1973, pp. 762 ff.

Note 7: See 湯德宗, Analysis of the Judicial Yuan Grand Justices' Interpretations Concerning the Separation of Powers, photocopied typescript, p. 16 (scheduled for publication in Chengchi Law Review, no. 54, December 1995).

Judicial Yuan Interpretation No. 419

Order promulgating the interpretation December 31, 1996 (Republic of China Year 85)

Question presented Is it unconstitutional for the Vice President to serve concurrently as Premier?

Holding 1. The Constitution does not expressly address whether the Vice President may concurrently serve as President of the Executive Yuan (Premier), nor are the two offices manifestly incompatible in nature. However, if the presidency becomes vacant or the President is unable to discharge the duties of office, this concurrent service would affect the constitutional arrangements for succession or the exercise of presidential powers by an acting President. It therefore does not fully accord with the Constitution's underlying intention that the offices of Vice President and Premier be held by different persons. The circumstances giving rise to this interpretation should be appropriately addressed in accordance with the foregoing interpretation.

2. When the Premier tenders the cabinet's collective resignation upon the inauguration of a new President, that resignation expresses respectOpinio jurisConstitutional content for the head of state. It is a courtesy resignation, rather thanOpinio jurisConstitutional content a constitutional obligationOpinio juris. How to deal with a resignation that the Premier is not constitutionally obliged to submit lies within the President's discretion. It is a type of what legal scholarship calls an act of state, and is not a matter for constitutional review by this Yuan.

3. Under the Constitution, it is the Executive Yuan that is responsible to the Legislative Yuan. Except on matters prescribed by the Constitution, the Legislative Yuan has no power to adopt resolutions requiring the President to act or refrain from acting in a particular way. Its June 11, 1996 resolution requesting that the President promptly nominate a Premier anew and seek the Legislative Yuan's consent therefore exceeded the Legislative Yuan's constitutional powers. It is merely a recommendation and has no constitutionally binding effect on the President.

Reasoning This case arose from the following petitions:

1. Legislator Hau Lung-bin and 81 other legislators sought an interpretation because applying the Constitution raised doubts about whether the Vice President could concurrently serve as Premier.

2. Legislator Chang Chun-hsiung and 56 other legislators sought an interpretation on whether Vice President Lien Chan's concurrent service as Premier contravened Article 49 and other provisions of the Constitution.

3. Legislator Feng Ting-kuo and 61 other legislators sought an interpretation of constitutional doubts concerning whether, when the Premier tenders the cabinet's collective resignation, a newly inaugurated President may endorse the submission with a request that the Premier remain in office, or return it, without a fresh nomination and request for the Legislative Yuan's consent, and whether the Vice President may concurrently serve as Premier.

4. Legislator Jao Ying-chi and 79 other legislators sought an interpretation on whether, following a presidential election, the Premier must resignOther constitutional principle and the President must nominate a Premier anew for the Legislative Yuan's consentOther constitutional principle; whether the Vice President may concurrently serve as Premier; whether the Legislative Yuan's resolution adopted on June 11, 1996, requesting that the President promptly nominate a Premier anew and seek its consent exceeded its constitutional powers; and whether that resolution bound the President. The Grand Justices resolved to accept and consolidate all four petitions. Pursuant to Article 13, paragraph 1, of the Constitutional Interpretation Procedure Act, representatives and counsel for the petitioners, and representatives and counsel designated by the Executive Yuan as the relevant government organ, were notified to appear before the Constitutional Court for oral argument on October 16 and November 1, 1996. These procedural matters are stated at the outset.

After oral argument concluded, petitioner Legislator Jao Ying-chi filed a motion on November 26 to reopen it. Having considered the materials obtained in the proceedings, the Grand Justices found them sufficient for a decision and deemed further oral argument unnecessary. This is also noted.

The petitioners in the first three cases advanced, in substance, the following arguments:

1. Whether the Vice President may concurrently serve as Premier is not a political question. Most constitutional controversies have political aspects. If that alone made them political questions for which interpretation is unavailable, constitutional disputes could scarcely be resolved judicially. The Grand Justices have already issued many interpretations on political matters, including Interpretations Nos. 261 and 387. In particular, the Judicial Yuan has issued more than ten interpretations on concurrent officeholding over the years. Would it not be inconsistent to treat the Vice President's concurrent service as Premier as a political question? Moreover, the political question doctrine developed gradually through individual decisions of American courts. Its content is uncertain and scholars have questioned it; it should not be hastily invoked. Our system provides for interpretation of constitutional doubts, and the Grand Justices have a duty to interpret whenever a petition meets the statutory requirements.

2. The offices of Vice President and Premier are incompatible and cannot be held concurrently. In constitutional theory, the President represents the state and presides without governing, while the Premier leads the government and governs without presiding over the state. Our Constitution follows this theory and establishes a form of parliamentary government. Article 37, Article 57, Article 2, paragraph 4, of the Additional Articles, and related provisions establish checks and balances between the President and Premier; the President therefore absolutely cannot concurrently serve as Premier.

Under Article 2, paragraph 1, of the Additional Articles, vice-presidential candidates register jointly with presidential candidates and appear as a single ticket on the ballot. Under paragraph 7 of that article, when the vice-presidency becomes vacant, the President nominates a candidate and convenes the National Assembly for a by-election. The President and Vice President thus share political ideals, have a close relationship, and form a unit. Since the President cannot serve as Premier, neither can the Vice President.

Article 53 makes the Executive Yuan the state's highest administrative organ, and its Premier and the cabinet he leads are responsible to the Legislative Yuan. Although the Vice President is a reserve officeholder with no expressly specified constitutional powers, he has a duty to assist the President and serves as the President's subordinate or deputy, ordinarily acting on presidential instructions. He thus has potential powers. If the Vice President also becomes Premier, the head of government becomes the President's chief of staff and all executive power falls into presidential hands. Constitutional checks and balances are virtually destroyed, and presidential approval of requests for reconsideration and the countersignature system lose their meaning. In practice, concurrent service also harms the public interest and public confidence; the time available does not permit one person to perform two demanding offices.

From the perspective of administrative law, even if the Vice President is not regarded as the President's subordinate, the theory of preserving the functions of constitutional organs means that his duty to assist the President still precludes concurrent service as Premier. As a rule, offices in different constitutional organs cannot be combined; any exception must rest on an express constitutional provision, such as the American Vice President's concurrent role as President of the Senate. Article 49 of our Constitution and Article 2, paragraph 8, of the Additional Articles provide, respectively, that the Vice President succeeds to a vacant presidency for the remainder of the presidential term, and that the Premier exercises presidential powers when both offices are vacant; when the President is unable to discharge the duties of office, the Vice President acts, and when both the President and Vice President are unable to do so, the Premier acts. Separate offices of Vice President and Premier provide a double safeguard for presidential succession. Combining them reduces the number of available successors and, if the presidency becomes vacant, inevitably produces a 'three-in-one' situation in which one person holds three offices. This contradicts the Constitution's underlying purpose.

If the President is merely unable to discharge the duties of office rather than the office being vacant, the same 'three-in-one' situation remains unavoidable. It also creates insoluble questions about whether presidential powers are being exercised in the capacity of Vice President or Premier and whether Article 51's three-month limit applies. Under the Additional Articles, impeachment of the Vice President is governed by Article 6, paragraph 5, while impeachment of the Premier follows paragraph 3, as for ordinary public officials. Their procedures and effects are entirely different. If a Vice President concurrently serving as Premier violates the law or neglects his duties, the Control Yuan would not know which impeachment procedure to follow. If the Premier, who directs the whole administration, is censured or impeached by the Control Yuan for administrative failures, or even leaves office, his fitness to remain Vice President would also be questioned. Furthermore, the Vice President is responsible to the National Assembly. If he also serves as Premier and is accountable to the Legislative Yuan, disagreement between the two assemblies could readily produce conflict.

Beyond the separation of three or five powers, there is also the power of the head of state, standing above the executive, legislative, judicial, and other powers. Through it, the President and Vice President impartially coordinate relations among the five Yuans. Article 44 embodies this purpose. A Vice President who also serves as Premier would himself be a party to a dispute and could not mediate from a detached, neutral position. Finally, the Judicial Yuan's past interpretations determine whether concurrent service is prohibited by asking whether the offices are compatible in nature and whether conflicts of interest exist. The foregoing demonstrates that the Vice President's concurrent service as Premier violates the principles governing permissible concurrent officeholding and is constitutionally impermissible.

3. The Vice President's concurrent service as Premier does not constitute a constitutional conventionGeneral constitutional custom. Constitutional conventions or constitutionalGeneral constitutional custom customary law arise only where there are repeatedlyLongus usus occurring precedentsLongus usus and the public has acquired a conviction of their legal authority. Although there were two earlier instances of a Vice President also serving as Premier, both occurred during the period of mobilization for suppression of the rebellion and martial law. They were exceptional and their constitutionality was disputed. They therefore cannot be regarded as constitutional conventions orGeneral constitutional custom customary law.

4. When the PremierUnrelated / insufficient tenders the cabinet's collective resignation, the incoming President should neither endorse it with a request to remain nor return it, but must make a fresh nomination and seek the Legislative Yuan's consent. Under the five-power constitutional framework, the President and Premier are not in a superior-subordinate relationship, so there is no superior entitled to endorse the Premier's resignation. A presidential order dismissing the Premier represents only a formal, not a substantive, power. When the Premier resignsOther constitutional principle after a new President is elected, the President must nominate a new Premier for the Legislative Yuan's consent. The Premier whom the Legislative Yuan originally approved has now become Vice President; the subject of its consent has changed. Prior consent cannot justify his continued service after the new President takes office. In conclusion, concurrent service by the Vice President as Premier is unconstitutional, and the Judicial Yuan should interpret the Constitution as prohibiting it. Anyone already holding both offices should choose to resign either the original or the concurrent office beginning on the day after publication of the interpretation. Failure to choose should be deemed resignation from the original office.

The petitioners in the fourth case and the Executive Yuan, the relevant government organ, advanced, in substance, the following arguments:

1. The Legislative Yuan's resolution of June 11, 1996, requesting that the President promptly nominate a Premier anew and seek its consent exceeded its powers and does not bind the President. The Constitution sets no term for the Premier, providing only for presidential nomination and appointment with the Legislative Yuan's consent. Under Judicial Yuan Interpretation No. 387, the Premier must resignOther constitutional principle before the first sitting following legislative elections held upon expiry of the preceding term. Incumbent Premier Lien tendered the cabinet's collective resignation on January 25, 1996, and was nominated by the President and approved by the Legislative Yuan to serve again as PremierOther constitutional principle, consistently with the constitutional system. Until the next legislative election, the President has no duty to nominate again, much less seek renewed consent. Moreover, under Article 57 it is the Executive Yuan, not the President, that is responsible to the Legislative Yuan. The latter cannot exceed its powers by supervising the President.

The relevant constitutional provisions also confer no power on the Legislative Yuan to require particular presidential conduct by resolution. Although Article 63 authorizes it to decide bills, budgets, martial law, amnesties, declarations of war, peace settlements, treaties, and other important matters of state, the resolution in question concerns neither such an important matter of state nor legislation adopted through three readings. It is therefore unquestionably nonbinding.

2. The Vice President's concurrent service as Premier is a highly political question. It is the general practice among nations to leave political questions or acts of state to the constitutionally established political branches—the government and parliament—for resolution, without judicial intervention. Judicial Yuan Interpretation No. 328 likewise excluded political questions from judicial review. Nevertheless, interpretations by the Grand Justices serve to settle rights and end disputes. Whether to issue an interpretation or decline because the matter is political remains a matter of judicial discretion, which the relevant government organ in this case fully respects.

3. The present Constitution does not prohibit concurrent service as Vice President and Premier, and the offices are compatible. From the May Fifth Draft Constitution promulgated by the National Government in 1936, through the Political Consultative Conference and the Constituent National Assembly, discussion concerned the relationship between the presidency and premiership and did not involve the Vice President. The Vice President is simply a reserve officeholder; the drafting history reveals no intention to prohibit concurrent service as Premier. Earlier interpretations concerning concurrent constitutional or statutory officeholding principally examined compatibility of functions and duties and conflicts of interest. On that test, the Vice President, being solely a reserve officeholder without specific ordinary statutory powers, has no duties or functions incompatible with those of Premier and no conflict of interest. Our constitutional system is not purely parliamentary. The Premier's countersignature differs from a parliamentary premier's countersignature of laws and ordersOther constitutional principle promulgated by a ceremonial head of state. The real constitutional checks and balances lie in the relationship between the Executive and Legislative Yuans. Concurrent service by the Vice President as Premier would not undermine that arrangement.

Under Article 2, paragraph 1, of the Additional Articles and the Presidential and Vice Presidential Election and Recall Act, both President and Vice President are elected by the people. The Vice President is neither appointed nor removable by the President. Their unity is only that of running mates, not a unity involving shared powers. Their relationship is not one of command and obedience or supervision between superior and subordinate. Presidential immunity from criminal prosecution does not extend to the Vice President. Neither the Constitution nor legislation, including the Organic Act of the Office of the President of the Republic of China, specifies powers exercised by the Vice President or provides that he assists the President as an ordinary administrative deputy assists an agency head. A Vice President also serving as Premier therefore does not combine the roles of obeying presidential orders and checking presidential power, and no constitutional conflict of roles can arise. The overlap in offices that opponents foresee if the presidency becomes vacant or the President is incapacitated can already be resolved. If the presidency becomes vacant, the Vice President succeeds under Article 49 and, as President, can nominate a new Premier for the Legislative Yuan's approval. A vice-presidential by-election can then be held under Article 2, paragraph 7, of the Additional Articles.

Before nomination or the by-election, a 'three-in-one' situation may indeed arise. But it is no different from the Premier acting for three months when both the presidency and vice-presidency are vacant. Since the Constitution permits the latter, the same legal reasoning should permit the former. The exercise of presidential powers during presidential incapacity can likewise be resolved through the foregoing procedures. Opponents also contend that unlawful conduct or dereliction of duty by a person holding both offices would obstruct impeachment by the Control Yuan, or that disputes among the Yuans requiring presidential mediation under Article 44 would confuse institutional roles. In fact, when impeachment concerns official misconduct, the procedure can be selected according to whether the case relates to the premiership or vice-presidency. For conduct outside official duties, such as private moral misconduct, the Control Yuan can decide which procedure to use. No practical obstacle need arise.

The mediation power in Article 44 is intended to be exercised by the President from a detached position. While the presidency is occupied, the Vice President has no constitutional authority to intervene on his own initiative in disputes among the Yuans. There is therefore no contradiction between the roles of mediator and party to mediation. The President may himself resolve disputes involving the Executive Yuan and other Yuans or entrust this to the Vice President or another suitable person. If the Vice President is also Premier, the President should naturally entrust it to someone else, thereby avoiding any conflict of roles.

4. Precedents already existLongus ususConstitutional content in our country for a Vice President concurrently serving as Premier, and foreign constitutional arrangements also show that such service is not incompatible. Since the Constitution took effect, two Vice Presidents have also served as Premier: Chen Cheng from July 1958 to December 1963, and Yen Chia-kan from May 1966 to May 1972, totaling eleven years without operational difficulties. Although both precedents occurred during mobilization for suppression of the rebellion, the constitutional provisions governing presidential and vice-presidential relations and the Vice President's reserve status have not changed. These instances may therefore be invoked as precedents. Furthermore, because our Constitution establishes neither a purely parliamentary nor a purely presidential system, comparable examples are scarce. The only useful comparison is the American Vice President's concurrent role as President of the Senate. Although the United States Constitution strictly separates executive and legislative powers, it permits an executive official to hold a legislative office concurrently. This shows considerable flexibility in allowing a Vice President, as a reserve officeholder, to perform other offices carrying actual powers.

5. When a new President takes office,Unrelated / insufficient the Premier may tender the cabinet's collective resignation,Other constitutional principle and the President may ask him to remain. Following Judicial Yuan Interpretation No. 387, the Premier mustOther constitutional principle submit a collective resignation before the first sitting after legislative elections held upon expiry of the preceding term; this resignation requirement is a new constitutional arrangementOther constitutional principle. Premier Lien's resignation on January 25, 1996 was in discharge of a constitutionalOther constitutional principle duty. Under the present Constitution, presidential and legislative terms do not coincide. The resignation he tendered after President Lee's election and inauguration was a courtesyOpinio jurisConstitutional content resignation grounded in politicalOpinio juris ethics. Whether to accept it, renominate the incumbent, or nominate someone else is a political judgment within the President's authority. It has been argued that in February 1996 the Legislative Yuan approved 'a Premier who was not also Vice President' or 'an interim Premier whom the President said would not continue in office,' and that, since the object of its consent has changed, it must exercise that power anew under the Constitution. But consent to the President's nominee concerns the nominee's suitability and was naturally unconditional. There is thus no change in its object or substance. The legislators exercising consent still belong to the same legislative term, the distribution of seats is unchanged, and the person approved is the same. Repeating the consent procedure is therefore unnecessary.

Having considered the arguments as a whole, this Yuan issues the interpretation for the following reasons:

1. Whether the question of concurrent service as Vice President and Premier is political is a preliminary issue in reviewing its constitutionality. Political questions and similar concepts, such as acts of state or acts of government, concern matters for political judgment by the constitutional political branches, including the executive and legislature, rather than judicial determination. Theories developed through constitutional practice in democratic constitutional states provide numerous useful references. This Yuan's Interpretation No. 328 likewise held that defining the boundaries of the 'existing national territory' in Article 4 is a major political question not to be interpreted by a constitutional interpretation organ exercising judicial power. The present doubt, however, concerns the legal question whether holding two constitutional offices concurrently violates the Constitution, rather than a political personnel arrangement. In light of this Yuan's numerous interpretations on concurrent constitutional officeholding, including Interpretations Nos. 1, 15, 17, 20, 30, 74, 75, and 207, a substantive interpretation of the present constitutional question cannot be refused on the ground that it is a political question or falls within a similar concept.

The petitioners' contention that this concurrent officeholding is not a political question is therefore accepted.

Constitutional conventionsGeneral constitutional custom occupy an important position in countries with unwrittenGeneral constitutional custom constitutions, and their normative force is unquestioned. Under a written constitutionGeneral constitutional custom, constitutional conventionsGeneral constitutional custom also exist as a concept, but merely supplement the constitutional text and cannot be placed on the same footing as the former. A conventionGeneral constitutional custom means a recurring practice that becomes an unwrittenGeneral constitutional custom norm only when it continues to be followed over a long period and is believed to bind conduct. Even where precedentsLongus usus existLongus usus, a practice cannot be recognized as a conventionOpinio juris with normative force if its binding character is seriously disputed because contrary precedents have also occurred or because it may conflict with written norms. Although two Vice Presidents previously served concurrently as Premier, there is also an instance of a Premier resigning immediately upon election as Vice President. Moreover, the constitutionality of such concurrent service is disputed. For the reasons given, it cannot be considered to have becomeGeneral constitutional custom a constitutional convention in our countryGeneral constitutional custom with normative force.

As to the permissibility of concurrent constitutional officeholding, express constitutional prohibitions must of course be observed, such as the restrictions on legislators and Control Yuan members in Articles 75 and 103. Concurrent service is also prohibited when the two offices are truly incompatible, as this Yuan has repeatedly held in the previously cited Interpretations Nos. 20, 30, and 207. The Constitution says nothing about the Vice President's concurrent service as Premier, so there is no express prohibition. The central question is therefore whether the offices are compatible. Incompatibility means that concurrent constitutional officeholding violates fundamental constitutional principles or risks creating a conflict of interest.

Since the United States Constitution of 1787 adopted strict separation of three powers as a basic principle, and Article 16 of the French Declaration of the Rights of Man of 1789 proclaimed that 'a society in which rights are not secured and the separation of powers is not defined has no constitution,' constitutional democracies have treated separation of powers as a guiding principle. Compatibility of constitutional offices must therefore first be assessed by asking whether their combination violates that principle.

If it does, concurrent service is unconstitutional unless the Constitution provides an exception, such as the American Vice President's presidency of the Senate or the ability of parliamentary legislators to serve as ministers. Even within a branch, such as the legislature, executive, or judiciary, concurrent service is impermissible where the constitutional design requires powers to be exercised separately by different members of two organs. In a bicameral parliament, for example, bills require separate approval by both chambers. Membership of both by one person would contradict the constitutional allocation of legislative power between them and would be impermissible. Interpretation No. 30 applied the same reasoning in holding that legislators could not also be National Assembly delegates: 'Allowing a legislator also to serve as a National Assembly delegate would combine in one person the inherently incompatible functions of proposing amendments and finally approving them.'

Within the executive branch, compatibility between the office of head of state and that of premier or minister depends on each country's system. In parliamentary or dual-executive systems, the checks and balances between head of state and premier naturally preclude one person from holding both offices. In presidential systems, such as those of the United States and Central and South American countries, the head of state is usually the chief executive and there is no premier. Presidents rarely serve concurrently as ministers, but vice presidents frequently do, as in Costa Rica and Panama. Switzerland, commonly described as having a collegial system, has seven ministers in its executive Federal Council (Conseil Federal, Bundesrat); the presidency and vice-presidency rotate among them as concurrent posts. These arrangements concern only the internal allocation of executive functions, do not violate the basic separation of powers, and consequently present no constitutional conflict.

In the allocation of powers between central and local government, it is still less true that every combination of offices is legally prohibited. In France, for example, premiers or ministers not infrequently also serve as mayors or other elected local officials. Our central government differs from all the foregoing systems, but adheres no less firmly to separation of powers. The independent exercise of judicial, examination, and control powers is beyond doubt. Executive and legislative powers are also distinctly separated, and their personnel cannot overlap; this explains Article 75's prohibition on legislators concurrently holding government office. When both the presidency and vice-presidency are vacant, when their terms have expired without successors being elected, or when elected successors have not assumed office, our Constitution expressly provides for the Premier to exercise presidential powers for three months (Additional Articles, Article 2, paragraph 8; Constitution, Articles 50 and 51). It does not follow other constitutions that provide for a parliamentary presiding officer to succeed when the President or Vice President is absent, as in the United States, the French Fifth Republic, and Italy, or even permit the head of the highest judicial body to act as President, as under Brazil's Constitution of October 5, 1988. Strict adherence to separation of powers requires executive functions to pass within the executive branch. The proposal during constitution-making to have the heads of the five Yuans act as President in succession was therefore not adopted.

Our Constitution provides that the Premier is nominated by the President and appointed with the Legislative Yuan's consent (Article 55, paragraph 1); that Executive Yuan requests for reconsideration of Legislative Yuan resolutions require presidential approval (Article 57, subparagraphs 2 and 3); and that the President's promulgation of laws and issuance of orders require the Premier's countersignature, while emergency orders additionally require approval by the Executive Yuan Council (Article 37 and Additional Articles, Article 2, paragraph 4). The Executive Yuan is, both in theory and practice, an organ directed by a single head, the Premier. There is therefore reason to view the presidency and premiership as mutually checking offices, and it is clear that one person cannot hold both. The Vice President stands in reserve for the President. It needs no elaboration that concurrent service as head of the Judicial, Examination, or Control Yuan would violate the separation of five powers and be constitutionally impermissible.

Concurrent service by the Vice President as Premier, however, does not manifestly contravene separation of powers. It cannot readily be declared unconstitutional on that basis.

The next issue is whether the Vice President and Premier have distinct allocated functions and whether checks and balances or conflicts of interest exist between them. From the drafters of the Constitution of the Republic of China published on May 5, 1936—the May Fifth Draft—to the National Assembly that enacted the present Constitution, the vice-presidency was established solely to provide a successor when the presidency becomes vacant or an acting President when the President cannot discharge the duties of office. Apart from these functions, the office has no ordinary powers. This history is supported by the drafting materials and was also acknowledged in the reasons submitted by petitioners Legislator Chang Chun-hsiung and others on June 15, 1996. The framers' intention is expressed in Article 49: the Vice President succeeds to a vacant presidency for the remainder of the term and exercises presidential powers when the President is unable to perform the duties of office.

No other provision prescribes the Vice President's functions or status. Current legislation likewise confers no powers beyond Articles 3 and 4 of the Organic Act of the National Security Council, which make the Vice President a Council member alongside the heads of the five Yuans and others and provide for him to act in the President's absence from a meeting. Thus, as a matter of legally prescribed authority, there is no division of functions, mutual check, or conflict of interest between Vice President and Premier. This differs from the inherent incompatibility or confusion of roles between National Assembly delegates and legislators, or between President and Premier. Since the Vice President is a reserve officeholder without specific powers except succession or acting service, assertions that concurrent service as Premier creates competing demands on official time or harms the public interest and public confidence are not conclusive.

The Vice President's eminent position naturally carries politicalUnrelated / insufficient influence, but, as explained, no specific constitutional powers. Unless he has constitutionally succeeded to the presidency or is exercising presidential powers as acting President, exercising any constitutional presidential authority would lack a legal basis. This cannot be equated with the position of an ordinary administrative deputy, who naturally assists the agency head under written or unwrittenUnrelated / insufficient norms. In fact, our country has alsoLongus usus never authorized a Vice President to exercise powers assigned to the President by Articles 35 through 44 or other express constitutional provisions while the presidency was occupied and the President able to serve. Although a Vice President may undertake temporary or ceremonialUnrelated / insufficient tasks on the basis of presidential confidence while otherwise remaining in reserve, these do not establish a statutory power to assist the President. The relationship cannot be equated with the legal relationship between heads and deputies in ordinary administrative organization.

Consequently, while the President ordinarily occupies the office and is able to serve, the Vice President's concurrent service as Premier creates no conflict of official interests between those two offices. Even if the Vice President in fact assists the President, this does not establish the petitioners' claim that he is a subordinate or deputy who ordinarily obeys presidential orders and therefore faces a conflict of roles upon becoming Premier. As to preserving constitutional organs' functions, the Vice President's reserve status itself fulfills the constitutional purpose of ensuring that the headship of state never lacks an officeholder. Concurrent service as Premier does not eliminate that reserve function.

Article 2, paragraph 1, of the Additional Articles provides that presidential and vice-presidential candidates shall register jointly and appear as a single ticket on the ballot. It is therefore normal for the elected President and Vice President to belong to the same party or political faction and share political ideals. Electoral alliances may nevertheless place candidates with different views on one ticket to secure victory. In particular, when the vice-presidency becomes vacant, paragraph 7 requires the President to nominate a candidate and convene the National Assembly for a by-election. The President must then choose someone acceptable to the Assembly's majority party caucus, rather than give priority to ideological agreement. This resembles nomination of a Premier for the Legislative Yuan's consent. The President and Vice President therefore need not share views or have a close relationship. Even if they do, the Vice President cannot jointly exercise the head of state's authority, share the head of state's constitutional privileges, or routinely act in the President's placeOther constitutional principle. How, then, can they legally be regarded as one? The relevant government organ's argument that their 'unity' means no more than their partnership in an election is not without merit.

The same reasoning explains the relationship between President and Premier. A President unable to influence the Legislative Yuan majority's votes must follow that caucus's wishes in nominating a Premier. Conversely, a President who leads the majority party or can influence more than half the legislators will naturally nominate a personally favored candidate with matching policies. If the Premier subsequently follows the President closely in governing, that is not unconstitutional, nor does it make the two legally a single entity. The petitioners' inference from supposed unity that 'what the President cannot do, the Vice President cannot do either' is therefore untenable. Given their relationship as explained, the Vice President's concurrent service as Premier cannot readily be considered to affect the mechanisms of countersignatureOther constitutional principle under Article 37, approval of reconsideration requests under Article 57, subparagraphs 2 and 3, or emergency orders under Article 2, paragraph 4, of the Additional Articles.

The checks between President and Premier depend on institutional arrangements assigning the offices to different people, not on the officeholders' party affiliations or political positions. Constitutional checks do not require them to hold opposing views or conflicting administrative programs. Although recall of the Vice President and a vice-presidential by-election involve the National Assembly's powers, the Additional Articles do not oblige the Vice President to report on national affairsOther constitutional principle to that body or hear its recommendationsOther constitutional principle. Thus concurrent service as Premier does not, as the petitioners contend, entail separate accountability to the National Assembly and Legislative Yuan likely to cause conflict between these representative bodies.

Article 49 provides that the Vice President succeeds to a vacant presidency for the remainder of the term, acts when the President cannot discharge the duties of office, and, if both President and Vice President are unable to serve, the Premier acts. When both offices are vacant, Article 2, paragraph 8, of the Additional Articles provides for the Premier to exercise presidential powers and for a presidential and vice-presidential by-election under paragraph 1, with the successors serving the remainder of the original term. If a Vice President also serving as Premier encounters presidential vacancy or incapacity, all three offices would indeed be concentrated in the person originally serving as Vice President. As explained, the Constitution plainly does not permit this under normal circumstances. But this 'three-in-one' situation can arise even without prior concurrent service. Article 49, Article 2, paragraph 8, of the Additional Articles, and Article 50 all contemplate the possibility of three offices being concentrated in one person.

Article 51 expressly limits the Premier's exercise of presidential powers to three months. If the presidency becomes vacant while the Vice President is also Premier, upon succeeding as Vice President he should immediately nominate a new Premier for the Legislative Yuan's consent. If the legislature is in recess, Article 55, paragraph 2, provides for the Vice Premier to act as Premier and requires a request within forty days for the Legislative Yuan to convene and exercise its consent powerOther constitutional principle. If the President is incapacitated rather than the office being vacant, and the incapacity lasts more than three months, the Vice President who is also Premier might, by analogy, be subject to Article 51's time limit and Article 55, paragraph 2. Thus, although concurrent service raises questions about succession and acting presidential service, possible solutions exist. The claim that the resulting obstacles amount to manifest unconstitutionality therefore remains open to debate.

Article 6, paragraphs 3 and 5, of the Additional Articles prescribe different impeachment procedures for ordinary public officials and for the President and Vice President. If a Vice President concurrently serving as Premier is impeached by the Control Yuan for dereliction of duty, the applicable procedure can be determined by whether the misconduct arose in the vice-presidential or premier capacity. The same applies to subsequent disciplinary or recall proceedings. If the conduct is unrelated to official duties, the Control Yuan may choose the impeachment procedure. Although questions of legal application cannot be wholly excluded, this does not readily establish manifest incompatibility between the offices. The petitioners' concern that a Premier censured, impeached, or even removed for administrative failures might be unfit to remain Vice President is political, not legal.

Article 44 states: 'In disputes between two or more Yuans, except where this Constitution otherwise provides, the President may convene the heads of the Yuans concerned for consultation and resolution.' Some commentators liken this to a head of state's neutral power. The petitioners similarly argue that presidential power as head of state should stand above the five powers, and that a Vice President serving as Premier creates a contradiction between mediator and party to mediation, depriving the head of state's power of its detached neutrality. Scholarship has not, however, settled whether Article 44 is equivalent to a head of state's power or neutral power.

Moreover, the so-called royal power (pouvoir royal), also termed neutral or moderating power (pouvoir neutre, intermédiaire et régulateur), was a doctrine advanced by a few early nineteenth-century French scholars, Clermont-Tonnerre and B. Constant, to preserve the limited powers retained by a monarch as head of state under constitutional monarchy (see Carl Schmitt, Der Hüter der Verfassung, 3rd ed., 1985, pp. 133 ff.). Neutral or moderating power in that sense failed to correspond to subsequent representative democratic practice and was criticized as an artificial construct (see Klaus von Beyme, Die parlamentarischen Regierungssysteme in Europa, 2nd ed., 1973, p. 89). Some constitutional scholars also consider political mediation by a king or president, as head of state, inherent in the nature of that office and independent of any constitutional provision (see Carl Schmitt, Verfassungslehre, 8th ed., 1993, p. 287).

Whether neutral power has become a constitutional institution in modern states remains disputed; it has not developed into a generally accepted theory ofUnrelated / insufficient separation of powers and therefore does not affect this interpretation. Even if the President's Article 44 authority is treated as the neutral power of the head of state, no contradiction between mediator and party to mediation follows.

Whether a constitutional act is unconstitutional resembles the question whether other public-law conduct is unlawful. An unlawful public-law act should be treated as void from the outset only where its defect is grave and manifest—the scholarly doctrine known as Gravitaets- bzw. Evidenztheorie. Lesser defects entail legal consequences determined by their particular nature. Thus constitutional courts in countries such as Germany and Austria do not review norms solely through a simple dichotomy of constitutional or unconstitutional, valid or invalid. Their decisions also include findings of incompatibility without nullity, unconstitutionality with invalidity taking effect after a specified period, and present constitutionality accompanied by a warning that the position may become unconstitutional and a requirement that the responsible organs act to prevent it, among other forms.

This Yuan's interpretations likewise do not adhere to a simple choice between complete constitutionality and unconstitutionality, but have developed varied approaches resembling those of Germany and Austria, as numerous precedents demonstrate. Where no express constitutional provision supplies a basis, the foregoing defect standard also applies in determining whether a constitutional act is sufficiently defective to be unconstitutional (see Interpretation No. 342). 'Grave' refers to violation of fundamental constitutional principles, such as popular sovereignty, separation of powers, or institutional guarantees of local self-government, or restrictions on freedoms and rights that impair their essential content and exceed necessity. 'Manifest' means that no doubt exists from any perspective or that no meaningful controversy remains. Here, concurrent service by the Vice President as Premier is not expressly prohibited, does not violate separation of powers, and involves neither manifest incompatibility nor a conflict of interest in the nature of the two offices. Reasonable views still differ. It therefore cannot readily be characterized as a grave and manifest defect amounting to evident unconstitutionality.

Moreover, Article 2, paragraph 3, of the Additional Articles provides that an order removing the Premier takes effect only after the Legislative Yuan has consented to the newly nominated Premier. If an incumbent Premier runs for and wins the vice-presidency, and the President lawfully nominates a new Premier, the newly elected Vice President must continue as Premier until legislative consent is obtained. Such concurrent service is unquestionably constitutionally permitted. Conduct allowed by the Constitution under specified conditions cannot simply be interpreted as unconstitutional. The sharply different views among government and opposition figures arise chiefly because the present Constitution combines elements of parliamentary and presidential systems within a five-power framework. Commentators' differing ideals or institutional preferences naturally yield opposite conclusions. Adjustment of the constitutional structure belongs to the organ authorized to amend the Constitution, which must assess circumstances and weigh advantages and disadvantages; it lies outside the constitutional interpreter's powers.

Nevertheless, by establishing three separate offices—President, Vice President, and Premier—the Constitution intended them to be held by different people. The original Constitution contained no provision for a vice-presidential by-election, but Article 2, paragraph 7, of the Additional Articles now expressly provides: 'When the vice-presidency becomes vacant, the President shall nominate a candidate within three months and convene the National Assembly for a by-election; the successor shall serve until the original term expires.' This demonstrates the constitutional amenders' emphasis on the office and their intention not to leave it vacant for an extendedOther constitutional principle period, so that a legal successor is immediately available upon a presidential vacancy and the head of state's functions continue without interruption. A Vice President who is also Premier might invoke Articles 51 and 55, paragraph 2, to arrange replacements after succeeding to a vacant presidency. Yet the petitioners' repeated concern that this weakens the 'double safeguard' for succession cannot be dismissed. If the President is unable to serve, rather than the office being vacant, the constitutional text supplies no direct answer.

Ordinarily, with different persons serving as Vice President and Premier, the Vice President can exercise presidential powers until the cause of the President's incapacity ends. When one person holds both offices, acting presidential service may produce incompatibility. Since that person is not acting solely in the capacity of Premier, the situation differs from Article 51, which specifically addresses a Premier's exercise of presidential powers. It thus falls outside the Constitution's designed mechanism for substituting for the President, and can perhaps only be accommodated imperfectly by adapting the application of its provisions. This is inconsistent with the normal constitutional design that the three offices be held by different persons and affects the prescribed mechanisms of succession and acting service. The petitioners' repeated objections on this ground therefore have considerable justification.

In sum, the Vice President and Premier are not manifestly incompatible offices. But if one person holds both, presidential vacancy or incapacity would affect the Constitution's arrangements for succession or acting service. Concurrent service therefore does not fully accord with the constitutional intention that these two offices be held by different persons. The circumstances that gave rise to this interpretation should be appropriately addressed in accordance with its meaning.

2. The Constitution sets no term for the Premier and consequently provides no clear rule on when the Premier must leave or may remain in office. Although Article 57 expressly makes the Executive Yuan responsible to the Legislative Yuan, in the past that body could not undergo regular, comprehensive elections. It was therefore impossible to determine whether the Premier and his colleagues—the Vice Premier and all ministers—should remain by reference to public opinion expressed in legislative elections. To prevent the Premier from remaining without any term limit, the Premier accordinglyLongus ususConstitutional content tendered the cabinet's collective resignationConstitutional content to each newly elected PresidentUnrelated / insufficient; over more than forty yearsLongus usus this gradually became an established practiceLongus usus. Yet there is no clear basis in the present Constitution for requiring collective resignationConstitutional content upon a new President's inauguration. Regular, comprehensive Legislative Yuan electionsUnrelated / insufficient began in 1992. Following the election of the second Legislative Yuan in February of the next year, the then Premier submitted his resignation. On October 13, 1995, this Yuan issued Interpretation No. 387, expressly explaining that government based on public opinion and responsible government require the Premier to resign to the President before the first sitting after legislative elections held upon expiry of the preceding term. Such resignation is a constitutional obligation of the PremierOther constitutional principle.

In addition, under Article 57, subparagraphs 2 and 3, when the Legislative Yuan disapproves an important Executive Yuan policy, it may resolve to request a change, and the Executive Yuan may, with presidential approval, seek reconsideration. The Executive Yuan may likewise obtain presidential approval to request reconsideration of legislation, budgets, or treaties passed by the Legislative Yuan that it considers difficult to implement. If two-thirds of the legislators present uphold the original resolution on reconsideration, and the Premier chooses to resign to the President rather than accept it, this too is a constitutionally obligatory resignation. The President has no basis for refusing a resignation submitted in fulfillment of that duty. Other reasons for a Premier's resignation are varied, including health, political circumstances, and leadership style; such resignations are not constitutionally obligatory. The same holds for resignation upon a new President's inauguration.

When the head of state changes,Unrelated / insufficient whether under constitutional monarchy or a republic, and whether in a conventional parliamentary system or the dual executive of the French Fifth Republic,Unrelated / insufficient European cabinets have frequentlyLongus ususConstitutional content tendered their resignations to the incoming head of state since the nineteenth centuryUnrelated / insufficient. These instances of resignation gave rise to the term 'courtesy resignation.'Longus ususOpinio jurisConstitutional contentUnrelated / insufficient Whether the head of state accepts a courtesy resignationConstitutional content and replaces the cabinet varies among countries and, within one country, according to circumstances at different times (see Klaus von Beyme, a.a.OUnrelated / insufficient., pp. 720–727). When the Premier's resignation is not constitutionally required, the President may assess the political situation and other circumstances and deal with it appropriately. Accepting it, returning it, or endorsing it with a request to remain all fall within the President's reasonable discretion in performing constitutional duties as head of state. They are acts of state and are not matters for constitutional review by this Yuan.

The petitioners contend that under the five-power constitutional framework the President is not the Premier's superior and therefore cannot endorse the Premier's resignation. That view is inconsistent with the Constitution. Article 2, paragraphs 2 and 3, of the Additional Articles contemplate not only presidential appointment and removal of the Premier but also presidential orders appointing and removing officials whose appointment constitutionallyLegal citation requires consent of the National Assembly or Legislative Yuan, such as Grand Justices, Examination Yuan members, Control Yuan members, and the Auditor-General. A subordinate relationship to the President is therefore irrelevant. Where the resigningOther constitutional principle Premier also becomes Vice President upon the President's inauguration, the constitutional questions are addressed separately in this same interpretation and need not be repeated here.

3. Article 62 expressly establishes the Legislative Yuan as the state's highest legislative organ. Article 63 generally provides that it may decide bills, budgets, martial law, amnesties, declarations of war, peace settlements, treaties, and other important matters of state. Its other powers include consenting to presidential nominations of the Premier under Article 55 and the Control Yuan's Auditor-General under Article 104; resolving to request termination of martial law under Article 39; hearing the Executive Yuan's policy reportsOther constitutional principle during sessions and questioning the Premier and heads of ministries and commissions under Article 57, subparagraph 1; resolving to request changes in important executive policies and deciding whether to uphold original resolutions on reconsideration under subparagraphs 2 and 3; examining the Auditor-General's audit report on final accounts under Article 105; resolving central-local competence disputes under Article 111; proposing constitutional amendments for final approval by the National Assembly under Article 174, subparagraph 2; and ratifying presidential emergency orders, which must be submitted within ten days under Article 2, paragraph 4, of the Additional Articles. Furthermore, Interpretation No. 325 authorizes the Legislative Yuan in plenary session to resolve to obtain original documents from relevant agencies on matters related to pending proposals. These extensive powers are all expressly conferred by the Constitution or norms having constitutional force.

Resolutions adopted through lawful legislative procedures on matters within these constitutional powers bind the population or relevant organs according to their nature. But every state organ must remain within constitutional limits. Where separation of powers assigns a function that might otherwise belong to the legislature, executive, or judiciary to another organ, or where the framers deliberately declined to establish an institution, each branch is constitutionally obliged to respect that arrangement strictly. An example of the former is investigative power, ordinarily legislative elsewhere but assigned to control power under our Constitution. Examples of the latter are parliamentary votes of no confidence in the cabinet and the cabinet's corresponding power to dissolve parliament, neither of which our Constitution adopts. Although the Legislative Yuan may consent to appointment of the Premier, it can exercise that authority only after the President has nominated a candidate and requested its consent. Article 55 is explicit.

Under Article 57, subparagraphs 2 and 3, the Legislative Yuan may resolve to request a change in an important executive policy it disapproves. If the Executive Yuan considers legislation, a budget, or a treaty adopted by the Legislative Yuan difficult to implement, it may obtain presidential approval and seek reconsideration, as it may in the policy case. If two-thirds of the legislators present uphold the original resolution, the Premier must accept it or resign. The framers designed these provisions to replace the no-confidence vote and parliamentary dissolution found in parliamentary systems; subsequent constitutional amendments have left them unchanged. If the Legislative Yuan could, through readings and a majority resolution, require the President to nominate a new Premier for its consent, and the President complied, this would effectively create a no-confidence voteOther constitutional principle that the framers rejected. Furthermore, the Constitution makes the Executive Yuan responsible to the Legislative Yuan. Apart from the constitutional matters already specified, the Legislative Yuan has no power to require the President by resolution to act or refrain from acting in a particular way.

Accordingly, the Legislative Yuan's June 11, 1996 resolution requesting that the President promptly nominate a Premier anew and seek its consent exceeded its constitutional powers. It is merely advisory and does not constitutionally bind the President.

Chair of the Council of Grand Justices: President Shih Chi-yang (施啟揚) Grand Justices: Weng Yueh-sheng (翁岳生), Liu Tieh-cheng (劉鐵錚), Wu Geng (吳庚), Wang Ho-hsiung (王和雄), Wang Tze-chien (王澤鑑), Lin Yung-mou (林永謀), Lin Kuo-hsien (林國賢), Shih Wen-sen (施文森), Cheng Chung-mo (城仲模), Sun Sen-yen (孫森焱), Chen Chi-nan (陳計男), Tseng Hua-sung (曾華松), Tung Hsiang-fei (董翔飛), Yang Hui-ying (楊慧英), Tai Tung-hsiung (戴東雄), Su Jyun-hsiung (蘇俊雄).

Dissenting opinion concerning whether the Vice President may concurrently serve as Premier Justice Tung Hsiang-fei (董翔飛)

The President holds the eminent position of head of state. If the office becomes vacant during a term or the President is unable to serve, and the Constitution provides neither a successor nor a suitable acting officeholder, the state risks being left without central leadership. Modern constitutional states therefore commonly establish a vice-presidency or designate particular persons to succeed or act, preserving constitutional government. Our Constitution and its Additional Articles contain an integrated institutional design for state organs, presidential succession and acting service, and mutual checks among organs. Its important features include the President's position as head of state, representing the Republic of China externally; direct election of President and Vice President by all citizens of the Republic of China; the Executive Yuan's status as the highest administrative organ; and nomination of its Premier by the President, appointment with the Legislative Yuan's consent, and responsibility to that legislature.

The President's promulgation of laws and issuance of orders require the countersignature of the Premier, or of the Premier together with the relevant ministry or commission head. If the Executive Yuan finds legislation, budgets, or treaties adopted by the Legislative Yuan difficult to implement, it may, with presidential approval, request reconsideration. If two-thirds of legislators present uphold the original decision, the Premier must accept it or resign. When natural disaster, epidemic, or major financial or economic upheaval requires urgent action, the President may issue emergency orders following an Executive Yuan Council resolution and take necessary measures. If the presidency becomes vacant, the Vice President succeeds for the rest of the term. If the vice-presidency becomes vacant, the President nominates a candidate within three months and convenes the National Assembly for a by-election to fill the remainder of the term. If both offices are vacant, the Premier exercises their powers, and a popular by-election is held within three months to fill the remainder of the term. [The source contains apparent typographical errors in the words for laws, reconsideration, and acceptance; their clear contextual meanings are rendered here.]

When the President cannot discharge the duties of office, the Vice President acts; if both are unable to serve, the Premier acts. The President leaves office at the end of the term. If a successor has not been elected, or both elected successors have not taken office, the Premier exercises presidential powers, subject to a limit of three months.

These provisions place the President, Vice President, and Premier at the constitutional system's core as head of state, deputy or reserve head of state, and head of the highest administrative organ, each with particular functions and powers. The President symbolizes the state and cannot be absent even briefly, hence the Vice President's immediate succession or acting service upon vacancy or incapacity. As the reserve, the Vice President likewise cannot be absent even briefly. Recognizing this, the second National Assembly added paragraph 7 to Article 2 of the Additional Articles: 'When the vice-presidency becomes vacant, the President shall nominate a candidate within three months and convene the National Assembly for a by-election; the successor shall serve until the original term expires.' This clearly demonstrates the intention to remedy a gap in the original Constitution.

Having the Premier act when both President and Vice President are absent or incapacitated prevents the constitutional crisis of a governmental power vacuum. The head of the highest administrative organ is exceptionally permitted to exercise presidential powers temporarily, while a prompt presidential and vice-presidential by-election restores normal constitutional government. Acting presidential service by the Premier thus performs an indispensable stabilizing function in maintaining the state and avoiding a break in government. But it must be conditioned on vacancy or incapacity of both President and Vice President to accord with the Constitution's original intention.

The President, Vice President, and Premier are important constitutional organs and form the axis of governmental stability. The Constitution establishes them in separate chapters and subjects them to mutual checks. Allowing the Vice President to serve as Premier would inevitably produce the following constitutional difficulties:

1. Under Article 49, the Vice President succeeds to a vacant presidency for the remainder of the original term. Under Article 2, paragraph 7, of the Additional Articles, the President must nominate a vice-presidential candidate within three months and convene the National Assembly for a by-election for the remainder of that term. If the Vice President and Premier are one person, checks and balances necessarily preclude continued service as Premier after presidential succession. Article 55 would require a request within forty days for the Legislative Yuan to convene and consent to a newly nominated Premier. Yet until that nominee obtains consent, the President would in fact also be Premier.

Under the original design, presidential succession by the Vice President does not require replacement of the Premier. Concurrent service changes this: a vice-presidential by-election must be arranged within three months while a new Premier is nominated for legislative consent within forty days. If the Legislative Yuan's majority caucus will not approve the nominee, Article 2, paragraph 3, of the Additional Articles means that the President must continue as Premier. Should that President then leave the office vacant or become unable to serve before a new Vice President and Premier are chosen, no one would remain to succeed or exercise presidential powers. The resulting anarchy and constitutional crisis would have unimaginable consequences for the state.

2. When the President is unable to serve, the Vice President exercises presidential powers. If the latter is also Premier, disputes arise about the applicable time limit. Article 49 imposes no limit on a Vice President's acting service, which may in principle continue until the cause of presidential incapacity ends or even until the presidential term expires. A Premier's acting service, however, cannot exceed three months. Deciding which rule applies and how it should be interpreted when one person holds both offices inevitably disrupts constitutional operation.

3. Under Article 49 and Article 2, paragraph 8, of the Additional Articles, when both President and Vice President are absent or unable to serve, the Premier exercises presidential powers, and a presidential and vice-presidential by-election is held within three months to restore normal constitutional government promptly. If the only person authorized to act—the Premier—is also Vice President, the first and second persons in the succession order have effectively been merged. In those circumstances there would be no Premier available to act, leaving the headship of state vacant without a successor. Can such a constitutional crisis be treated lightly?

In January 1949, Chiang Kai-shek, the first President after the Constitution took effect, formally announced his 'retirement' in the capital, Nanjing, in view of domestic and international political circumstances and to create conditions for peaceful national unification. He left the presidency, and Vice President Li Tsung-jen exercised presidential powers under Article 49's provision for presidential inability to serve. Soon afterward peace negotiations collapsed, the central government moved south, and the political environment changed profoundly. Acting President Li flew to Guangzhou and then, citing illness, went to the United States for treatment and did not return. For the first time in constitutional history, both President and Vice President were unable to serve. Fortunately, Premier Yen Hsi-shan held that office independently, rather than its being combined with the vice-presidency. He could therefore exercise presidential powers pursuant toLegal citation the latter part of Article 49 until the cause of President Chiang's incapacity ended and Chiang 'resumed the discharge of his duties' in Taiwan on March 1, 1950, resolving the crisis.

Had the Vice President also been Premier at that time, no Premier would have been available to act, with consequences too grave to imagine. Inability of both President and Vice President to serve could still be resolved by the President's resumption of duties. But if both offices were vacant and no Premier remained to exercise presidential powers, the constitutional catastrophe caused by the resulting anarchy would be unimaginable. The constitutional design placing the Vice President and Premier in succession was intended to ensure stability by keeping the headship of state occupied at all times. How could it be arbitrarily displaced or destroyed?

As already explained, the Constitution's separation of the head of state and head of administration for mutual checks means that the President cannot also be Premier. The President and Vice President register jointly, appear on one ballot, and are directly elected by the whole population to implement a common political vision. Although the Vice President ordinarily has no specific powers, succession or acting service gives him the President's full authority. If he also serves as Premier, the successor or acting President is no longer simply the Vice President envisaged by the Constitution, but a Vice President who is also Premier. After succession, he remains Premier until the Legislative Yuan consents to a new nominee. During acting service, he is simultaneously Vice President, acting President, and Premier. Multiple constitutional roles—the head of state and the head of the highest administrative organ—are thus concentrated in one person, who controls both head-of-state and executive powers.

Constitutional operation would produce disorder: the President would submit his own laws and orders to himself for countersignatureOther constitutional principle; nominate the Vice Premier, ministry and commission heads, and ministers without portfolio and submit their appointments to himself; approve his own reconsideration requests to the Legislative Yuan; report on policy, answer legislators' questions, and bear responsibility to the legislature as Premier; chair the Executive Yuan Council and use its resolutions to request his own emergency orders responding to natural disasters, epidemics, or major financial or economic upheaval; and convene himself as Premier together with other Yuan heads to resolve their disputes.

This would not only violate Article 49's original purpose. The checks and balances established by Articles 43, 44, 55, 57, and 72 would also be entirely destroyed by the Vice President's concurrent service as Premier.

The Grand Justices have consistently judged whether constitutional offices may be held concurrently by asking whether their functions are compatible in nature. Repeated application has established a consensusLongus usus. Incompatibility concerns combinations that clearly violate fundamental constitutional principles or risk conflicts of interest in exercising powers and impairment of checks and balances. Interpretation No. 30 stated: '...The National Assembly gives final approval to constitutional amendments proposed by the Legislative Yuan and establishes procedures for exercising initiative and referendum powers. If legislators could also be National Assembly delegates, one person would combine the incompatible functions of proposal and final approval. Moreover, a legislator would exercise legislative power while also participating in initiatives and referendums on central legislation, contrary to the spirit of Articles 25 and 62. Concurrent service is therefore impermissible.' Its prohibition on legislators also serving as National Assembly delegates rested on this reasoning.

Although the National Assembly's exercise of initiative and referendum powers is a distant prospect and Legislative Yuan proposals for constitutional amendment are rare, this Yuan nonetheless strictly applied the test that even a possible conflict of interest suffices to prohibit concurrent service. If a Vice President also serving as Premier succeeds to the presidency or exercises presidential powers, the incompatibility and foreseeable conflicts described above plainly arise. How can it be said that the offices are 'not yet manifestly incompatible'?

Consider impeachment as well. The Control Yuan must submit impeachment of a President or Vice President to the National Assembly, and approval by two-thirds of all delegates results in removal. Impeachment of the Premier instead goes to the Judicial Yuan's public-official disciplinary body, whose sanctions include removal or reprimand. When one person holds both offices, which procedure and receiving organ should the Control Yuan choose? Although the nature of the official conduct might determine this, practical confusion and obstacles remain inevitable. If the National Assembly removes the Vice President, does the concurrent premiership also terminate, or does it continue? If the disciplinary body removes the Premier, is the original vice-presidency also lost, or may he remain in that office? The two offices also differ in methods of selection and bodies to which they are accountable. Decisions about departure or continued service therefore implicate responsible government and government based on public opinion. All these matters undermine constitutional stability. How can the Constitution be said to permit them?

Modern states with written constitutions, whatever their system, structure government around separation of powers and checks and balances to prevent concentrated and abused power. Our President, Vice President, and Premier are important constitutional organs at the center of power. The President is head of state; the Vice President is the reserve head of state, immediately exercising presidential authority when the presidency is vacant or the President incapacitated. Both symbolize the state and cannot be absent even briefly. The Premier heads the highest administrative organ, occupies the government's administrative center, and acts when both President and Vice President are absent or incapacitated, maintaining the state's continuity and avoiding a vacuum or break in governmental power. Together they form the axis of governmental stability. Their weighty functions and eminent status require separate officeholders. Concurrent service as Vice President and Premier plainly contradicts the constitutional purposes of keeping the headship of state continuously occupied and maintaining checks through separation of President and Premier. It must therefore be constitutionally prohibited.

The holding and reasoning treat these central issues lightly, ambiguously, or not at all—particularly the question of where a Premier available to act would come from if both President and Vice President were absent or incapacitated. I therefore submit the foregoing dissent.

Partial dissent concerning whether the Premier should tender the cabinet's collective resignationOther constitutional principle upon an elected President's inauguration, and whether the President may ask the resigning cabinet to remain Justice Tung Hsiang-fei (董翔飛)

In a modern state governed by law, the formation of government and implementation of policy must rest on public opinion to possess democratic legitimacy. The Legislative Yuan is the highest legislative organ, whose popularly elected members exercise legislative power on behalf of the whole people. The Executive Yuan is the highest administrative organ; its Premier is nominated by the President and appointed with the Legislative Yuan's consent, and bears political responsibility to that body for administration and policy. This is the Constitution's institutional arrangement among President, Executive Yuan, and Legislative Yuan, and an effective mechanism for government based on public opinion and responsible government. Under Interpretation No. 387, the Premier must tender the cabinet's collective resignationOther constitutional principle before the first sitting following legislative elections held at the end of the preceding term. The President can then assess the resulting political circumstances and distribution of seats among parties and nominate a suitable candidate for legislative consent and appointment. The Premier's departure or continued service thus depends entirely on the public will represented in the Legislative Yuan.

The President exercises the nomination power when the premiership becomes vacant or when an express constitutional provision or judicial interpretation requires resignation. Following establishedUnrelated / insufficient procedures and considering the public will represented in the legislature, the President nominates a suitable candidate for consent and appointment. Because the Premier relies on the support and approval of a legislative majority and is politically accountable for policy success or failure, collective resignationOther constitutional principle upon legislative elections at the end of a term accords with both government based on public opinion and responsible government. Although Article 2, paragraph 1, of the Additional Articles provides for direct presidential election beginning with the ninth term, neither the Premier's nominationOther constitutional principle procedure nor accountabilityOther constitutional principle to the Legislative Yuan has changed.

Earlier precedents of Premiers resigning when presidential terms expiredLongus ususConstitutional content have ceased to apply after major changes in constitutionalUnrelated / insufficient circumstances: regular, comprehensive legislative electionsOther constitutional principle replacing the first Legislative Yuan's senior members beginning in 1992Unrelated / insufficient; Premier Hau Pei-tsun's collective cabinet resignationConstitutional content in February 1993 following election of the second Legislative Yuan; and this Yuan's October 1995 Interpretation No. 387 addressing the legislature's question whether the Premier should resign before the next President's inauguration or instead upon legislative elections at the end of a term.

Once the Premier has been nominated and appointed with legislative consent through constitutional due processOther constitutional principle, Article 57's requirement that the Executive Yuan be responsible to the Legislative Yuan means that another collective resignation upon presidential inauguration should be unnecessary. That interpretation accords with the provision's purposes of government based on public opinion and responsible government.

If the Premier nevertheless tenders a collective resignation to show respectOther constitutional principle for the new President's nomination power, this is a courtesyOpinio juris gesture based on politicalOpinio jurisConstitutional content ethics, not fulfillment of a constitutional duty to resignOpinio jurisConstitutional content. The President may, out of respect and courtesyOpinio juris toward party government and the legislature's majority opinion, endorse it with a request to remain or return it. This is consistent with the constitutional system and the interpretation's purpose and should not be constitutionally prohibited. The holding and reasoning instead treat a resignation that should never have been required like other resignations and permit appropriate disposition, including acceptance. This plainly changes the meaning of Interpretation No. 387 and is inconsistent with government based on public opinion and responsible government. I therefore submit this partial dissent.

Dissenting opinion in the case concerning the Vice President's concurrent service as Premier Justice Liu Tieh-cheng (劉鐵錚)

The Constitution is the fundamental law governing the organization of state organs and the people's rights and duties. Our Constitution vacillates between three-power and five-power models in structuring the state, and between presidential and parliamentary systems in defining central legislative-executive relations. In both respects it shifts from one model to another without a clear institutional scheme. Constitutional uncertainty and ambiguity are consequently widespread. Only appropriate interpretation and normal operation can remedy this.

On whether the Vice President's concurrent service as Premier violates the Constitution, I begin with the constitutional text and the principles underlying it. The reasons for finding such concurrent service unconstitutional are as follows:

I. Concurrent service as Vice President and Premier violates the constitutional separation of powers.

Our Constitution sets out the central government's organization and each organ's powers in separate chapters: National Assembly (Chapter III), President (Chapter IV), legislature (Chapter V), executive (Chapter VI), judiciary (Chapter VII), examination (Chapter VIII), and control (Chapter IX). [The chapter numbers for legislature and executive are reproduced as listed in the source.] This division of institutions and powers adopts separation of powers as an institutional means of preventing concentrated power, despotism, and arbitrary rule. The principle applies to members of every constitutional organ. The Constitution expressly regulates concurrent officeholding only for central representative officeholders (see Article 28, paragraph 3, Article 75, and Article 103) because they are elected, have a special status, and concurrent service readily generates disputes. No express prohibition applies to personnel of the other constitutional organs—the presidency, executive, judiciary, and examination branch—because they are all public officials and, under separation of powers, the prohibition on serving concurrently in different organs is self-evident.

Otherwise, allowing a senior official of one constitutional organ also to hold senior office in another would effectively merge institutions, confuse powers, and blur official capacities, with serious consequences. It would unquestionably undermine the Constitution's separation of powers through distinct chapters specifying each organ's organization and authority.

If one argues that President and Vice President both belong to the executive branch and that concurrent vice-presidential service as Premier therefore does not violate separation of powers, where does this place those offices under Article 53's declaration that 'the Executive Yuan is the state's highest administrative organ'? And what value would Article 37's countersignatureOther constitutional principle requirement have within a single executive structure?

Although successive Grand Justices have used compatibility of functions as a criterion in interpretations on concurrent constitutional officeholding, all those interpretations concerned representative officeholders: No. 1, legislators holding government office; No. 15, Control Yuan members also serving as National Assembly delegates; No. 17, Control Yuan members serving as editors at the National Institute for Compilation and Translation; No. 20, Control Yuan members serving as medical personnel, public-hospital directors, or physicians; No. 30, legislators also serving as National Assembly delegates; No. 74, National Assembly delegates also serving as provincial or county councilors; No. 75, National Assembly delegates holding government office; and No. 207, provincial or centrally administered municipal councilors and speakers serving as heads of private colleges or schools. [The source has an apparent typographical error in the expression for centrally administered municipalities.] These interpretations not only all concerned representative officeholders but consistently applied strict standards and rejected concurrent service; No. 75 merely restated the Constitution's original meaning. Reasoning from the lesser to the greater makes it still less appropriate to use them as precedents permitting public officials to serve in multiple constitutional organs.

Under separation of powers, the prohibition on officials serving in different constitutional organs at once follows from the nature of those institutions. It also implements the Constitution's intention in establishing separate organs with different powers.

The first sentence of Article 14, paragraph 1, of the Public Functionary Service Act provides: 'Except as prescribed by law or regulation, public officials may not concurrently hold another public office or engage in other professional work.' If officials cannot hold another public office generally, how much less an office in another constitutional organ! No current law or regulation expressly permits either the Vice President or Premier to hold another public office; even such a provision would raise constitutional doubts. Ordinary public officials must strictly observe the Act. How could the deputy head of state or head of the highest administrative organ be an exception? Concurrent service as Vice President and Premier therefore raises statutory as well as constitutional illegality.

II. Concurrent service as Vice President and Premier violates constitutional checks and balances.

Our Constitution provides that the Premier is nominated by the President and appointed with legislative consent (Article 55, paragraph 1), and that Executive Yuan requests for reconsideration of Legislative Yuan resolutions require presidential approval (Article 57, subparagraphs 2 and 3). The source next repeats, literally: 'The President's promulgation of laws and issuance of orders require presidential approval (Article 57, subparagraphs 2 and 3).' [This appears to be a duplicated and corrupted clause.] The President's promulgation of laws and issuance of orders require the Premier's countersignature, and emergency orders additionally require approval by the Executive Yuan Council (Article 37 and Additional Articles, Article 2, paragraph 4). For these reasons, commentators agree that President and Premier stand in a relationship of mutual checks and cannot be the same person. Whether concurrent service by the Vice President as Premier violates this principle is considered below in two situations:

(1) Before the Vice President succeeds to the presidency or exercises presidential powers.

Article 2, paragraph 1, of the Additional Articles requires vice-presidential candidates to register jointly with presidential candidates and appear as a single ticket on the ballot. Their close relationship and common electoral fate—winning together or losing together—are undeniable. The Vice President alone has the right to succeed to the presidency and to exercise presidential powers without a time limit. Article 2, paragraph 7, also requires the President, when the vice-presidency becomes vacant, to nominate a candidate within three months and convene the National Assembly for a by-election for the rest of the term. The distinctive feature of being the presidential reserve thus emphasizes the Vice President's eminent and important constitutional status. To argue instead that the lack of specific ordinary powers permits concurrent service in any compatible office without conflicting interests confuses priorities and reverses the proper order of reasoning. Moreover, President and Vice President are both provided for in Chapter IV, and the Vice President is the President's deputy. Given the checks between President and Premier, concurrent service by the Vice President as Premier necessarily risks impairing or undermining that constitutional principle.

(2) After the Vice President succeeds to the presidency or exercises presidential powers.

Article 49 provides: 'When the presidency becomes vacant, the Vice President shall succeed for the remainder of the presidential term. ... When the President is unable to discharge the duties of office, the Vice President shall exercise presidential powers.' If the Vice President also serves as Premier, succession upon a vacancy combines the presidency and premiership in one person; acting service during presidential incapacity combines President, Vice President, and Premier in one person. In light of the constitutional checks between President and Premier and the prohibition on combining their offices explained above, the unconstitutionality of concurrent vice-presidential service as Premier is obvious and needs no elaboration.

It is argued that even without concurrent service the Premier acts as President when: (1) both President and Vice President are absent (Additional Articles, Article 2, paragraph 8); (2) both cannot discharge their duties (Article 49); or (3) the President's term expires without a successor being elected, or both elected successors have not assumed office (Article 50). These provisions all produce a constitutionally permitted 'two-in-one' situation. Why, then, should the 'two-in-one' or 'three-in-one' situation resulting from the Vice President's concurrent premiership be unconstitutional? The answer is that the three specified situations, although contrary to checks and balances, are express constitutional exceptions for unavoidable circumstances. The Constitution neither expressly permits the Vice President to serve as Premier nor authorizes the resulting combination of two or three offices. That situation cannot be equated with the three expressly authorized exceptions and therefore violates constitutional checks and balances.

Another argument is that a Vice President who is also Premier can, upon succeeding to a vacant presidency, immediately nominate a new Premier for legislative consent; if the legislature is in recess, the Vice Premier can act under Article 55, paragraph 2. This supposedly resolves the combination of two offices before it becomes unconstitutional. Such strained interpretation and application to preserve the existing situation have blind spots. In the first scenario, the combination persists until the new Premier receives legislative consent (see Additional Articles, Article 2, paragraph 3). In the second, the Premier's resignation under Article 55, paragraph 2, is voluntary rather than constitutionally obligatory. Matters of constitutional importance cannot depend on an individual's goodwill. The proper course is to establish institutions that secure lasting constitutional stability.

For the same reasons, if the President becomes incapacitated while the Vice President also serves as Premier, the resulting combination of three offices cannot be satisfactorily resolved merely by analogy or adapted application of other provisions. Constitutional interpretation must never pursue momentary convenience at the cost of endless future difficulties.

III. Concurrent service as Vice President and Premier violates the Constitution's double safeguard for the exercise of presidential powers.

The President is head of state, represents the Republic of China externally (Article 35), commands the nation's army, navy, and air force internally (Article 36), and holds the powers enumerated in Articles 37 through 44. As the symbol of the state's unified existence and the leader supported by the people, the President's high position and extensive powers cannot be left vacant for even a day. Besides providing for the Vice President to succeed upon vacancy or act upon incapacity, Article 2, paragraph 8, of the Additional Articles states that the Premier exercises presidential powers when both offices are vacant, and the latter part of Article 49 says the same when both officeholders are unable to serve. These provisions establish a double safeguard to ensure that the exercise of presidential powers is never interrupted.

By separately establishing President, Vice President, and Premier, our Constitution plainly intended different persons to hold the three offices. Thus the provisions just cited authorize the Premier to act when 'both' President and Vice President are absent or incapacitated, omitting neither office. Although the original Constitution provided no by-election for a vacancy in the vice-presidency alone, Article 2, paragraph 7, of the Additional Articles now requires the President to nominate a candidate within three months and convene the National Assembly for a by-election for the remainder of the term. This especially demonstrates the second National Assembly's concern for the vice-presidency and its refusal to leave it vacant indefinitely, ensuring immediate successionOther constitutional principle upon presidential vacancy and uninterrupted presidential functions. If both President and Vice President nevertheless become absent or unable to serve, the Premier remains available to exercise presidential powers, and a presidential and vice-presidential by-electionOther constitutional principle is held immediately.

But if the Vice President also serves as Premier and both President and Vice President become absent or incapacitated, no one is authorized to exercise presidential powers. No one can represent the Republic of China externally or command the armed forces internally. The country is left without anyone to perform the head of state's duties. Would this not defeat the Constitution's purposes of consolidating state authority, safeguarding the people's rights, securing social peace, and promoting public welfare? Those entrusted with the grave responsibility of constitutional interpretation must remain faithful to its original intent and constantly bear in mind the need to establish lasting, rather than merely temporaryUnrelated / insufficient, constitutional stability. I therefore submit the foregoing dissent.

Identification: KOR-2004-3-003 2004Hun-Ma554·566 (consolidated) October 21, 2004 CONSTITUTIONAL COURT — DECISION Case: 2004Hun-Ma554·566 (consolidated), Constitutional challenge to the Special Act on Measures for the Construction of a New Administrative Capital. Petitioners: 1. Choi Sang-cheol and 168 others (listed in Appendix 1; 2004Hun-Ma554). Counsel: Shinchon Law Firm, attorneys Kim Moon-hee and Lee Young-mo; attorney Lee Seok-yeon. 2. Jeong Jae-myeong (2004Hun-Ma566), Unit 101, Seyeong Villas, 66-4 Gwangmyeong 1-dong, Gwangmyeong City. Court-appointed counsel: attorney Kim Young-jin. Intervenors: Im Man-su and 229 others (listed in Appendix 2). Counsel: Shinchon Law Firm, attorneys Kim Moon-hee and Lee Young-mo; attorney Lee Seok-yeon. ORDER The Special Act on Measures for the Construction of a New Administrative Capital (Act No. 7062 of January 16, 2004) is unconstitutional.

REASONS 1. Background and subject matter of review a. Background (1) On September 30, 2002, Roh Moo-hyun, presidential candidate of the Millennium Democratic Party, announced an election pledge to relocate the administrative capital: “I will move the Blue House and government ministries to the Chungcheong region to curb concentration in the capital region and address the underdevelopment of regional economies.” Roh was elected in the sixteenth presidential election on December 19, 2002. In April 2003, the Regulations on the Organization and Operation of the Planning Group for the Construction of a New Administrative Capital and Related Bodies (Presidential Decree No. 17967 of April 17, 2003) were enacted. Under those regulations, a planning group was established under the Blue House and a support group under the Ministry of Construction and Transportation. They formulated policies for the new administrative capital, surveyed candidate locations, and performed related tasks.

(2) In October 2003, the Government introduced the bill for the Special Act on Measures for the Construction of a New Administrative Capital. On December 29, 2003, the National Assembly passed it in plenary session by 167 votes out of 194 members voting, with 13 against and 14 abstentions. On January 16, 2004, the Act was promulgated as Act No. 7062 and, under its supplementary provisions, took effect three months later. To remedy the adverse effects of concentration in the capital region, promote balanced national development, and strengthen national competitiveness, it provides for relocating the administrative capital to Chungcheong. It establishes a Presidential Committee for the Construction of a New Administrative Capital, jointly chaired by the Prime Minister and a private citizen; creates a special account administered by the Minister of Construction and Transportation; and includes provisions to prevent uncontrolled development and real-estate speculation.

(3) After the Act took effect, the Committee for the Construction of a New Administrative Capital was inaugurated on May 21, 2004. At its fifth meeting, on July 21, it deliberated and resolved to relocate the central administrative bodies comprising 18 ministries, four offices, and three agencies (73 institutions) to the new administrative capital. As for constitutional organs such as the National Assembly, Assembly consent would be sought when those organs themselves requested relocation. At its sixth meeting, on August 11, 2004, the Committee selected the Yeongi–Gongju area: approximately 21.6 million pyeong encompassing Nam-myeon, Geumnam-myeon, and Dong-myeon in Yeongi County and Janggi-myeon in Gongju City, South Chungcheong Province. (4) The petitioners are officials of the Seoul Metropolitan Government, members of the Seoul Metropolitan Council, residents of Seoul, and citizens living elsewhere throughout the country. They maintain that the entire Act is unconstitutional because it pursues relocation of the capital without constitutional amendment or equivalent procedures, thereby infringing their referendum rights, taxpayers’ rights, right to be heard, equality, freedom of residence and movement, freedom of occupational choice, right to hold public office, property rights, and right to pursue happiness. They filed constitutional complaints seeking a declaration of unconstitutionality on July 12 (2004Hun-Ma554) and July 15 (2004Hun-Ma566), 2004.

b. Subject matter of review The question is whether the Special Act on Measures for the Construction of a New Administrative Capital (Act No. 7062, enacted January 16, 2004; hereafter “the Act”) violates the Constitution by infringing the petitioners’ fundamental rights. The Act is reproduced in Appendix 3. 2. Summary of the petitioners’ arguments and the views of interested institutions a. Petitioners’ arguments (1) Enacted to fulfill the President’s election pledge, the Act plans and promotes what is, in substance, relocation of the capital. Constitutionally, the fact that Seoul is the capital of the Republic of Korea belongs to the unwrittenGeneral constitutional custom Constitution. Relocation therefore acquires constitutional legitimacy only through a referendum, a procedure comparable to constitutional amendment, establishing a national consensus.

Moreover, the Act concerns important national policies relating to national security, and there was sufficient time to hold a referendum. Its enactment should therefore necessarily have been preceded by a referendum under Article 72 of the Constitution. The failure to do so violates the Constitution and infringes the petitioners’ referendum rights. (2) The enormous cost of relocating the capital will be met from the national budget, funded by citizens’ taxes. Such expenditure disregards priorities for public investment and constitutional principles and is unconstitutional. As the basis for this unconstitutional public spending, the Act infringes taxpayers’ rights, which should be protected as “rights not enumerated in the Constitution” under Article 37(1).

(3) Relocating the capital constitutes a plan to reorganize the state or its territory and profoundly affects every citizen. Due process therefore requires procedures during legislation, including hearings, to gather diverse views from every sector of society. Omitting those procedures infringed the public’s right to be heard, including that of the petitioners. (4) The petitioners who are members of the Seoul Metropolitan Council or Seoul officials anticipate losing the status and rights they have enjoyed in performing public duties as Seoul officials as a result of the Act. This infringes their right to hold public office and freedom to practice an occupation. (5) Although the Act purports to establish procedures for building a new administrative capital, it deals with substantive matters. It requires the National Assembly to decide the relocation plan before the President approves it, treating the Assembly as though it were subordinate to the President. It also fixes a particular destination for relocation. It therefore lacks the systemic coherence that must be maintained among legal norms.

The Act also violates equality by discriminating without reasonable grounds against other regions compared with Chungcheong, the designated relocation region. Petitioners living in the capital region expect disadvantages in their economic and social lives following relocation, infringing their freedom of occupational choice, freedom of residence and movement, and right to pursue happiness. b. Views of the President, the Minister of Construction and Transportation, the Minister of Justice, and the Committee for the Construction of a New Administrative Capital (1) None of the alleged infringements of fundamental rights is plausible. The Act contains only general provisions for promoting relocation, unrelated to infringements of individual citizens’ fundamental rights. Nor can it directly infringe such rights without concrete implementing measures.

Furthermore, the Act was passed on December 29, 2003, and promulgated on January 16, 2004. A constitutional complaint should have been filed within 90 days of that date, but the petitioners did not file until July 12, 2004. The petitions are therefore inadmissible as out of time. (2) A right to vote in a referendum under Article 72 arises only when the President exercises the power to submit a matter to referendum, so no such right is at issue here. The capital is not a matter requiring constitutional amendment. Seoul’s status as capital rests only on statutory grounds and cannot be regarded as part of an unwritten ConstitutionGeneral constitutional custom possessing constitutional force. Moreover, changing an unwritten ConstitutionGeneral constitutional custom does not require constitutional amendment procedures. The Act therefore cannot infringe the right to vote in a referendum under Article 130.

(3) Although citizens are taxpayers, they have no right to sue over whether the Government uses taxes appropriately. Such spending is monitored and controlled solely through their representative body, the National Assembly. The taxpayers’ rights alleged by the petitioners thus cannot have been infringed in the first place. (4) Although the petitioners allege infringement of the right to be heard, the Government held a public hearing while preparing the bill and gave advance notice of the proposed legislation. During the Assembly’s legislative proceedings, the competent committee resolved, in accordance with the National Assembly Act, to dispense with a public hearing. Due process was therefore observed, and no right to be heard was infringed. (5) Neither the provisions of the Act among themselves nor the Act and other statutes conflict or contradict one another. The principle of systemic coherence is not violated.

Even though the Daejeon–Chungcheong region is designated as the prospective relocation area, there are reasonable grounds, including balanced national development and alleviation of concentration in the capital region. No violation of the petitioners’ equality rights can therefore be found. (6) Relocation affects only incidental economic benefits that the petitioners enjoy in fact. It cannot infringe freedom of occupational choice, freedom of residence and movement, the right to pursue happiness, or the like. c. Views of the Mayor of Seoul The Mayor’s position is substantially the same as the petitioners’, with particular emphasis on Seoul’s long history and optimal location as capital, the unsuitability of relocation as a solution to overcrowding in the capital region, and the failure to allow Seoul or its Metropolitan Council to submit views during enactment of the administrative-capital legislation.

3. Admissibility a. Whether infringement of fundamental rights is plausible The Act definitively decides to relocate the capital and prescribes the relocation procedures. Although no express constitutional provision identifies Seoul as the capital, constitutional interpretation may establish that this is a basic constitutional matter settled by the long tradition of national life and forming part of unwritten customary constitutional lawGeneral constitutional custom. If so, the Act, which provides for relocation, changes the Constitution through a subordinate statute without constitutional amendment procedures. Even a matter not expressly stated in the constitutional text remains part of the Constitution if it belongs to customary constitutional lawGeneral constitutional custom, and can be changed only through constitutional amendment.

Article 130 requires that a constitutional amendment be proposed by a majority of the total membership of the National Assembly or by the President, approved by at least two-thirds of the total Assembly membership, and then necessarily submitted to a referendum. It must receive the votes of a majority of those voting, with participation by a majority of those entitled to vote in National Assembly elections. If examination of the merits confirms that Seoul’s status as capital is a rule of customary constitutional lawGeneral constitutional custom, the Act regulates through ordinary legislation a matter requiring constitutional amendment. By excluding the referendum indispensable to such amendment, it may infringe the people’s right to vote. The Act may thus infringe the petitioners’ referendum right, a fundamental right of political participation in constitutional amendment, and a plausible infringement is established.

b. Whether the infringement is personal, direct, and present Having found a plausible infringement of the petitioners’ fundamental rights, we next examine whether it is personal, direct, and present. The right infringed is the right to vote in a constitutional-amendment referendum, one of citizens’ rights of political participation. Each petitioner, as a citizen of the Republic of Korea, holds that fundamental right, so their personal connection to its infringement by the Act is clear. Moreover, the Act assumes relocation of the capital and provides for its concrete implementation; no further procedure or decision is required concerning relocation itself.

The Act directly excludes the people’s fundamental right to vote in a referendum on constitutional amendment, satisfying the directness requirement. Its promulgation and entry into force legally settled relocation and already excluded the petitioners’ referendum right. The infringement has thus materialized and continues, satisfying the requirement of present injury. Accordingly, the petitioners are personally affected by the Act, which decides relocation and prescribes its procedures, and the infringement is both direct and present. c. Compliance with the filing period Article 69(1) of the Constitutional Court Act provides that a constitutional complaint under Article 68(1) must be filed within 90 days after learning of the grounds for the complaint and within one year after those grounds arose.

Accordingly, where a statute or regulation infringes fundamental rights upon taking effect, a constitutional complaint must be filed within 90 days of learning that it has taken effect and within one year of its effective date. Where circumstances bringing a person within the legislation arise only after it takes effect and cause an infringement, the complaint must be filed within 90 days of learning of those circumstances and within one year of their occurrence (Constitutional Court, April 29, 2004, 2004Hun-Ma93, Gazette 92, 554, 556). The present complaints were filed on July 12 and July 15, 2004, both within 90 days of April 17, 2004, when the Act took effect. They therefore comply with the filing periodUnrelated / insufficient under either approach.

d. Whether the matter is excluded from judicial review as a highly political act We consider whether these complaints are inadmissible because constructing a new administrative capital or relocating the capital is a highly political issue and the President’s or National Assembly’s decisions on it fall outside judicial review. (1) Our Constitution does recognize state actions requiring highly political decisions by the President or the Assembly, such as invoking emergency powers or dispatching armed forces abroad. The need to respect such decisions as far as possible may call for judicial restraint. Nevertheless, the rule of law, a basic constitutional principle, requires the President, the Assembly, and every other public authority to be subject to law. All state action must observe the limits arising from its role as a means of realizing the values embodied in the people’s fundamental rights. The Constitutional Court is entrusted with safeguarding the Constitution and guaranteeing those rights. Even state action based on a highly political decision is therefore subject to this Court’s review when directly connected with infringement of fundamental rights (see Constitutional Court, February 29, 1996, 93Hun-Ma186, Reports 8-1, 111, 115–116). (2) Although construction of a new administrative capital or relocation of the capital is political in character, it cannot be said to be inherently so dependent on highly political judgment as to be unsuitable for judicial review.

Moreover, the present review concerns the constitutionality of the Act, rather than of presidential conduct. When a statute’s constitutionality is before the Constitutional Court, the mere fact that it involves political questions does not exclude judicial review. (3) Admittedly, if the President’s decision whether to submit construction of a new administrative capital or relocation to referendum is reviewed as a preliminary issue in determining the Act’s constitutionality, judicial restraint may be desirable because that decision requires highly political judgment. Correspondingly, restraint may be desirable in reviewing a statute alleged to be unconstitutional because of defects associated with that decision.

But where the President’s decision is directly connected with an infringement of fundamental rights, it may be reviewed by the Constitutional Court, as may legislation associated with it. Alongside indirect political participation such as the electoral franchise (Article 24), our Constitution provides for direct political participation through referendums (Articles 72 and 130). The referendum right is therefore a constitutionally guaranteed fundamental right (see Constitutional Court, June 28, 2001, 2000Hun-Ma735, Reports 13-1, 1431, 1439). If the President’s decision infringes that right, it is directly connected with infringement of a fundamental right and is reviewable even if it requires highly political judgment. Thus, even where the Act’s constitutionality is questioned in connection with a presidential decision, it may be challenged by constitutional complaint.

(4) Accordingly, even if deciding the Act’s constitutionality requires a preliminary determination of the constitutionality of a presidential decision concerning a referendum, the Act remains reviewable insofar as necessary to determine whether the petitioners’ referendum rights were infringed. A constitutional complaint is therefore available. These petitions cannot be dismissed as directed against a matter outside the scope of constitutional complaints. e. Conclusion As examined above, the complaints satisfy the admissibility requirements concerning these issues. No other defect in admissibility is apparent. The petitions are admissible.

4. Merits a. The constitutional concept of a capital (1) Generally, a country’s capital is the place where state institutions exercising the central powers of the state are concentrated, performing its core political and administrative functions and symbolizing it externally. A capital meeting the normative requirements of a constitutional state should possess the following characteristics. First, in a constitutional state based on representative democracy, it must be where legislative functions are exercised through Parliament, the people’s representative institution. Being the legislature’s “official seat” is an important element of capital status. Second, it must be where the state’s representative or integrative functions are performed. In a presidential constitution such as ours, the President represents the state and maintains its unity. These domestic and external activities confer on the place where they occur an essential element of capital status.

Such activities of the head of state have symbolic value in the public’s sentiments and provide a psychological basis for national integration. They are therefore fundamentally important in identifying a capital. Further, a capital is the place where state institutions performing governmental functions operate. By responsibly implementing domestic and foreign policies, including economic policy, the Government leads the state politically and administratively. These functions confer an element of capital status on the place where they are exercised and realized. On the other hand, because government administers affairs in a manner that must be creative and proactive, its organization is specialized and extensive and need not all be concentrated in a single city. Recent dramatic advances in information and communications technology permit video conferences, electronic approvals, and other advanced means to overcome distance and achieve coordinated work. Dispersing government bodies is therefore a matter that may be considered as a policy choice.

In particular, in a presidential system the President is both head of state and head of the executive. The President’s seat may thus be regarded as representing the seat of government. So long as the President’s location is treated as a characteristic element of a capital, the locations of individual ministries need not independently be decisive. By contrast, the location where judicial power, including constitutional adjudication, is exercised and a city’s economic capacity are not essential determinants. In sum, a capital means, at a minimum, the seat of the state institutions performing core political and administrative functions. (2) The highest constitutional organs under our Constitution are the National Assembly (Chapter III), the President (Chapter IV, Section 1), the Prime Minister (Section 2, Subsection 1), the executive ministries (Section 2, Subsection 3), the Supreme Court (Chapter V), the Constitutional Court (Chapter VI), and the National Election Commission (Chapter VII).

Among these organs, particularly decisive in identifying the capital are the locations of the National Assembly, which determines the people’s political will as their representative institution, and the President, who directs the administration and represents the state. As head of state, the President symbolizes the nation and, as head of government, is its highest governing authority. Parliament, composed of representatives elected by the sovereign people, plays a central role in expressing their will and making important decisions of state under today’s system of indirect democracy. These two institutions thus stand at the center of state power and of the external expression of the state’s existence and characteristics.

b. Whether the Act contains a decision to relocate the capital Article 1 of the Act expressly states only that it “prescribes the methods and procedures for constructing a new administrative capital”; it does not expressly include a decision to move the Republic of Korea’s capital from Seoul to another place. Furthermore, the Committee’s plan identifying the major state institutions to be relocated requires presidential approval (Article 6(1)). In particular, relocation of constitutional organs outside the Government requires National Assembly consent (Article 6(4)). Even a major institution might therefore be excluded, depending on presidential approval and Assembly consent.

The Act thus does not directly and definitively require every major state institution, including the National Assembly and the President, to relocate. On the other hand, it defines the new administrative capital as “an area newly constructed as a capital possessing the state’s core political and administrative functions … designated by statute” (Article 2(1)), and the proposed site as “an area designated and publicly notified … for relocation of major constitutional organs and central administrative agencies” (Article 2(2)). It thus clearly requires the new administrative capital to house major constitutional organs and central administrative agencies and to serve as the capital exercising those core functions.

Although the Act does not identify every major institution to be moved, it requires relocation on a scale sufficient for the new administrative capital to perform the state’s core political and administrative functions. It therefore provides for moving the national capital within the constitutional concept explained above—the seat of the state institutions exercising those central functions. Relocation to the new administrative capital under the Act means relocation of our country’s capital. The Act also requires selection of the prospective site within Daejeon Metropolitan City, North Chungcheong Province, and South Chungcheong Province (hereafter “Chungcheong”) (Article 8). It establishes the Committee under the President to promote construction efficiently (Article 27). The Committee is to plan the relocation of major institutions (Article 6(1)), prepare a basic construction plan (Article 7(1)), designate the proposed site (Article 12), prepare a development plan for construction (Article 19), and handle all other matters needed for smooth construction (Article 28). The Act further regulates designation of the project implementer (Article 18), preparation of the construction project plan (Article 19), preparation and approval of the implementation plan (Article 20), installation of infrastructure (Article 22), expropriation of land and other property (Article 23), and inspection upon completion (Article 26).

Thus, the Act goes beyond planning relocation and regulates the actual construction project. In particular, it empowers the Committee created under it to formulate and implement the various relocation plans described above, so that relocation proceeds through implementation of the Act without a separate state decision to move the administrative capital. The Act itself therefore contains the decision to transfer the major institutions exercising the state’s core political and administrative functions to the new administrative capital to be built in Chungcheong. It consequently embodies a decision to relocate the capital of the Republic of Korea to that region.

c. Whether Seoul’s status as capital is part of our customary constitutional lawGeneral constitutional custom (1) Meaning and requirements of customary constitutional law under a written constitution (a) Korea has a written constitution, and the constitutional code is therefore the primary source of constitutional law. Even a written constitution cannot comprehensively regulate every constitutional matter. Moreover, as the state’s fundamental law, a constitution seeks brevity and implicit meaning. Matters absent from the formal constitutional text may therefore be recognized as unwritten constitutional lawGeneral constitutional custom (不文憲法) or customary constitutional lawGeneral constitutional custom. In particular, matters that were self-evident or presupposed when the Constitution was enacted, and universal constitutional principles, are sometimes left without express provisions.

This does not mean that every practice or conventionGeneral constitutional custom developing on constitutional matters becomes customary constitutional lawGeneral constitutional custom. Strict requirements must be met before it can be recognized as a binding constitutional norm. Only a custom meeting those requirements has, as customary constitutional law, the same legal force as the written Constitution. (b) Article 1(2) provides: “Sovereignty of the Republic of Korea resides in the people, and all state authority emanates from the people.” The people are the sovereign of the Republic of Korea and the supreme constituent power. They therefore not only participate in making and amending the written Constitution, but may also directly form rules on constitutional matters omitted from its text, as necessary, through customConstitutional content.

Accordingly, customary constitutional law, like the written Constitution, expresses a constitutional decision of the sovereign people and must be regarded as having equal force. The creation of constitutional norms through custom is one aspect of the exercise of popular sovereignty. Popular sovereignty, or democracy, requires the people’s participation in establishing all positive law, whether written or customaryGeneral constitutional custom. Customary constitutional law established by the people binds the legislature and has constitutional force. (c) For customary constitutional lawConstitutional content to arise, its subject must first be a fundamental matter of such constitutional importance that it must be regulated by the Constitution with force superior to statute, rather than being merely a matter for legislation.

Substantive constitutional matters generally include the organization of the state, the allocation of powers among state institutions, and the individual’s position in relation to state power. Customary constitutional law concerns, among those general constitutional matters, matters so fundamental and central to the state that regulation by ordinary legislation is inappropriate. No general, abstract criterion can determine how far such fundamental and central matters extend within the broader category. Their scope must be established by concrete judgment in each case, evaluating constitutional principle, importance, and the principles of the Constitution.

(d) Next, customary constitutional law must satisfy the general requirements for the formation of customary lawGeneral constitutional custom. First, there must be a practiceConstitutional content or conventionConstitutional content concerning a fundamental constitutional matter. Second, the practiceGeneral constitutional custom must have been repeated orLongus usus continued long enough for the people to recognize its existence and regard it as enduring (repetition and continuity). Third, the practiceLongus usus must persist without an intervening contrary practice (constancy). Fourth, the practiceGeneral constitutional custom must have clear content, rather than being so ambiguous as to permit various interpretations (clarity). Fifth, the practice must have gained popular approval, conviction, or broad consensus as a constitutional customOpinio juris, so that the people believe it to be binding (national consensus). All these requirements must be satisfied for customary constitutional lawGeneral constitutional custom to be recognized.

(2) The capital as a fundamental constitutional matter Determining the seats of constitutional institutions, particularly the President who represents the state and Parliament which plays a central role in democratic government, is a substantive constitutional matter expressing the state’s identity. State identity here means the national characteristics formed through the collective expression of the people’s history and experience, culture, politicsUnrelated / insufficient and economy, governmental structure, and spiritual symbols, serving as the source of the nation’s emotional unity. Besides establishing the capital, fundamental constitutional matters concerning state identity include choosing the country’s name, making Korean the national language and Hangul its script, delimiting the territory, and identifying the locus of sovereignty.

Establishing or relocating a capital determines the locations of the highest constitutional organs, including the National Assembly and the President, and gives the foundations of state organization a spatial arrangement. It is both a fundamental popular decision about national life and a core constitutional matter underpinning the state. The capital is thus substantively a constitutional matter, and an important and fundamental one concerning state identity and basic organization. The people must decide it themselves; it cannot be left to the President, Government, or subordinate agencies. (3) Whether Seoul’s capital status constitutes customary constitutional lawGeneral constitutional custom (a) Our constitutional text contains no express clause stating that “the capital is Seoul.”

But the dictionary meaning of “Seoul” is itself “capital.” Since Yi Seong-gye founded the Joseon dynasty in 1392 and chose Hanyang as its capital, the area now called Seoul has traditionally been designated for some 600 years by turning that common noun into a proper name. That this area is the capital is therefore self-evident even from its name. Before the Republic of Korea was established, the people already recognized it, consciously or unconsciously, as a historical and traditional fact. At the founding of the Republic it was an unquestioned, self-evident premise of the state’s basic organization.

Thus, from the outset of constitution-making, including the Founding Constitution, a provision confirming the tautological and obvious fact that “the capital (Seoul) is located in Seoul” would have been meaningless and unnecessary. Although the Constitution has since been amended several times, no express capital clause has been introduced. That does not mean, in light of our historical, traditional, and cultural circumstances, that no constitutional custom concerning the capital exists. Seoul’s capital status is a self-evident or presupposed fact firmly established through long tradition and custom in national life. All citizens recognize it as a binding legal norm concerningLongus usus the organization of our state. (b) In determining whether Seoul’s capital status is customary constitutional lawGeneral constitutional custom, we must above all empirically establish the historical circumstances in which it became the capital and continuously performed that role.

1) The founding of Joseon and the establishment of Seoul as capital (a) As early as the Goryeo dynasty, Namgyeong, the Southern Capital, was established in Seoul. Alongside Pyongyang, the Western Capital, and Gyeongju, the Eastern Capital, it formed Goryeo’s three-capital system and served as a center of regional administration (1067, the twenty-first year of King Munjong). Namgyeong directly administered parts of present-day Seoul and Gyeonggi. A sizable city, including a palace, had been built as the administrative center for the surrounding area; Goryeo kings sometimes stayed there on royal tours.[1] (b) Relocation was proposed immediately upon the founding of Joseon. Taejo Yi Seong-gye (“Taejo”), who ascended the throne on July 17, 1392, the fourth year of King Gongyang, ordered the Dopyeonguisasa, the Deliberative Council,[2] on August 13 that year to move the capital to Hanyang.

But on September 3 that year, Bae Geuk-ryeom, Jo Jun, and others petitioned: “Hanyang’s palace and fortifications are unfinished. The royal retinue would have to take over private homes; the weather is growing cold, and the people would have nowhere to return. Let us build the palace and walls and arrange the government offices before moving the capital.” Taejo accepted this advice, and the initial relocation plan was suspended.[3] (c) Subsequent discussion shifted to choosing the capital’s site as new candidates, including Gyeryongsan and Muak, emerged. On February 8, 1393, Taejo’s second year, he personally inspected the candidate site below Gyeryongsan, examined its terrain and waterways, water transport, and roads, and selected it as the new capital. Construction and reorganization of the relevant administrative districts then began.

On December 11 that year, however, construction was again halted following objections by Ha Ryun, then governor of the left and right divisions of Gyeonggi. Ha argued that the capital should be centrally located, whereas Gyeryongsan lay too far south, among other reasons for stopping construction. Taejo accepted the recommendation after review by officials.[4] Muak, now the Yeonhui and Sinchon neighborhoods of Seoul, then emerged as a new candidate. On August 11, 1394, Taejo’s third year, he inspected Muak himself. Many officials opposed it, and some even advocated keeping the capital at Songdo. He ordered a further search, and Namgyeong—Hanyang—again drew attention.

On August 13, Taejo inspected Hanyang. His royal Buddhist preceptor Jacho, known as Muhak, and the chief ministers all considered it suitable, and he finally chose it as the capital.[5] (d) Formally, on August 24 the Dopyeonguisasa recommended Hanyang, and Taejo decided on relocation by accepting the chief ministers’ petition.[6] After several months of preparation, the capital moved to Hanyang on October 25 that year. On June 6, 1395, Taejo’s fourth year, Hanyang-bu was reorganized as Hanseong-bu. A neighborhood-name register erected by Hanseong-bu on the King’s orders on April 19, 1396, his fifth year, shows that Hanseong consisted of five divisions and 52 neighborhoods.

[7] (e) Following this relocation, the king and officials temporarily withdrew to Gaeseong on March 7, 1399, King Jeongjong’s first year, to avoid calamity and disturbances. Except for the several years until their return to Hanseong on October 11, 1405, King Taejong’s fifth year,[8] Hanseong—Seoul—remained the capital throughout Joseon. (f) Hanseong’s capital status was reflected in the Gyeongguk Daejeon,[9] Joseon’s fundamental legal code, completed under King Seongjong. Provisions on Hanseong-bu appeared in the “Capital Offices” section of the Personnel Code, under “Hanseong-bu.” Capital offices were distinguished from provincial offices. Hanseong-bu was expressly assigned responsibility for household registers, markets, and other affairs of the capital, making Hanseong’s status clear.

[10] These provisions of the Gyeongguk Daejeon remained unchanged throughout the dynasty. 2) Seoul’s continued capital status during Japanese occupation Japan’s occupation of Korea began with annexation in August 1910. Nevertheless, Gyeongseong-bu, or Seoul, continued as Korea’s administrative center. It was also where national representatives proclaimed independence on March 1, 1919, despite the loss of sovereignty. Following the March First Movement, the Provisional Government of the Republic of Korea was established in Shanghai on April 13 that year. Its Provisional Constitution, enacted September 11, regulated the Provisional Assembly in Chapter IV. Article 20 allotted six representatives each to Gyeonggi, Chungcheong, Gyeongsang, Jeolla, Hamgyeong, and Pyeongan provinces and to Korean communities in Chinese and Russian territory, and three each to Gangwon and Hwanghae provinces and the Korean community in the Americas. It made no special mention of Seoul, nor did subsequent amendments to the Provisional Constitution.

Besides the government established in Shanghai, provisional governments arose in several other places. Those formed in Shanghai, Russian territory, and Hanseong (Seoul) assembled in Shanghai and created a unified provisional government on September 15 that year, with a constitution, assembly, proclamation of commitment, political platform, and program. It operated a secret administrative network, the Yeontong system, with a chief administrator in Seoul. These circumstances show that, although Japanese occupation had dismantled the state’s organization, Seoul retained its external symbolic status as Korea’s capital. The Provisional Government organized anti-Japanese activities on the assumed basis of Seoul’s capital status, and the public’s understanding did not change. Its status was therefore effectively maintained during this period.

3) Seoul’s continued capital status from liberation and the founding of the Republic to the present During the period from liberation to the founding of the Republic, our Constitution was enacted without an express capital clause. Historically, however, numerous individual statutes have presupposed that Seoul is the capital. (a) The first was United States Military Government Ordinance No. 106 of September 18, 1946, “Establishment of the City of Seoul.” Article 2 designated Seoul a special city as the “capital of Korea,” with functions and powers equivalent to a province. The first discussion of Seoul’s status by representatives of our people occurred in the South Korean Interim Legislative Assembly within the Military Government, established by Ordinance No. 108 of August 24, 1946, “Establishment of the South Korean Interim Legislative Assembly.”

The draft South Korean Interim Administrative Organization Act submitted to that Assembly on February 27, 1947, singled out Seoul in the second sentence of Article 52: “Seoul shall be a special city directly under the central administration.” The draft Local Autonomy Organization Act discussed on July 30 retained the substance of Ordinance No. 106, expressly providing that “Seoul, as the capital of Korea, shall be a special city, with functions and powers equivalent to a province” (Article 29, second sentence).[11] (b) Seoul acquired its special-city status under the Local Autonomy Act (Act No. 32 of July 4, 1949). Article 2 established provinces and “Seoul Special City” as local governments directly under the central Government.

Representative Na Yong-gyun, chair of the Home Affairs and Public Security Committee, explained: “Under Japanese rule, all were municipalities and counties. During the interim government, Seoul alone was called Seoul Special City, while the others were called municipalities.… Considering population and its position as capital, there is also the example of Japan’s practiceUnrelated / insufficient of calling Tokyo a metropolis. With such factors in mind, Seoul was designated a special city.” This confirms that the designation reflected its capital status.[12] (c) Under current law, amendment of the Local Autonomy Act by Act No. 4004 of April 6, 1988, introduced Article 161: “Special provisions prescribed by statute may be made concerning the status, organization, and operation of Seoul Special City, taking account of its special characteristics as the capital.” Pursuant to that provision, the Act on Special Administrative Provisions for Seoul Special City was enacted as Act No. 4371 on May 31, 1991.

Under that Act, Seoul is directly under the central Government and has special status as the capital (Article 2). Before the Minister of Home Affairs decides whether to approve Seoul’s municipal bond issue or audits its autonomous affairs, the matter must undergo coordination by the Prime Minister (Article 4(1), (2)). The Mayor has special powers concerning appointment of city officials and recommendations for decorations (Article 4(5), (7)). Where the heads of central administrative agencies and the Mayor disagree over planning or implementing roads, transportation, environmental measures, or other matters related to Seoul in the capital region, the Prime Minister coordinates the dispute (Article 5). (d) This legislative history shows that statutory provisions mentioning Seoul’s capital status have existed continuously since liberation. They accept its traditional capital status as an existing normative premise and legally establish Seoul’s special position on that basis. They do not purport to determine at the statutory level that Seoul is the capital.

This legislative history confirms the people’s traditional legal conviction that Seoul is the capital. (c) As seen above, although no express constitutional clause identifies Seoul as capital, its status was recorded in the Gyeongguk Daejeon following the founding of Joseon and had legal force as a fundamental norm of the state over a very long period. History and customLongus ususOpinio juris had formed a legal conviction among the people even before the Constitution was enacted. Since the Founding Constitution, this has been part of the most basic, self-evident, and presupposed norms of our constitutional system. It must therefore be regarded as having become an unwritten constitutional normGeneral constitutional custom. More specifically, measured against the requirements for customary constitutional lawGeneral constitutional custom set out above, Seoul’s capital status—as its name indicates—has been an unquestioned normative fact of national life for some 600 years since Joseon. It is a continuing practiceLongus usus traditionally formed in our national lifeLongus usus (continuity). This practiceLongus usus has remained effective and unchanged over a long period without interruption (constancy). Its content is clear and leaves no room for differences of personal opinion among Korean citizens (clarity). Further, the practiceLongus usus has become firmly establishedLongus usus over many years, receiving popular approval and broad consensus (national consensus). It is a basic matter of national life that the people believe to be effective and binding.

Seoul’s capital status is thus a constitutional customGeneral constitutional custom traditionally existing before our enacted Constitution. Although not expressly stated in its provisions, it is a self-evident norm presupposed by the Constitution and constitutes unwritten constitutional lawGeneral constitutional custom established as customary constitutional lawGeneral constitutional custom. In other words, Seoul’s capital status, meeting all the requirements described above, is no mereUnrelated / insufficient factual proposition: it has developed into an unwritten constitutional normOpinio juris with constitutional force. This does not derive an “ought” from an “is.” Rather, its normative force has continued undisputed, with its normative character latent behind the factual proposition. (4) Constitutional procedures for abolishing the customary constitutional rule that Seoul is the capital (a) Recognizing a legal norm as customary constitutional law necessarily implies that it can be amended.

As part of the Constitution, customary constitutional law has the same force as the written Constitution. Such a norm can therefore be amended only by at least the constitutional-amendment method under Article 130. After approval by two-thirds or more of the total National Assembly membership (Article 130(1)), it must be submitted to referendum, with participation by a majority of the parliamentary electorate and approval by a majority of those voting (Article 130(3), as cited in the source). In this case, however, the customary constitutional normGeneral constitutional custom is abolished by adding a contrary rule to the constitutional text. This distinguishes it from a written constitutional norm, which is abolished by deleting the relevant textual provision.

Apart from such formal constitutional amendment, customary constitutional law may lose legal force when the national consensus supporting it disappears. It exists only as long as the sovereign people recognize it as a valid constitutional norm. If national consensus, one requirement for the continued existence of customary law, vanishes, it loses its constitutional force. The requirements for customary constitutional law govern both its formation and its continuing validity. (b) Customary constitutional rules recognized under a rigid written constitution such as ours cannot be amended by statute, a subordinate form of law. Under an unwritten, flexible constitution such as Britain’s, no constitutional code with a form superior to statute exists. Constitutional matters can therefore generally be changed only through legislative amendment.

Our Constitution, however, prescribes strict amendment procedures in Chapter X, Articles 128–130, differing from those for ordinary legislation. It identifies the subject of those procedures simply as the “Constitution.” Since customary constitutional law is also constitutional law, it must be included within the Constitution subject to amendment. Our system distinguishes constitutional amendment sharply from statutory amendment and makes the former more rigorous. If customary constitutional law could nevertheless be amended by statute, it would cease to be recognized as constitutional law and would merely be customary “statute law.” Ultimately, this would deny its existence as constitutional law.

That result logically contradicts the premise that customary constitutional law is recognized even under a written constitution and cannot be accepted within our constitutional system. (c) Abolishing the customary constitutional rule that Seoul is Korea’s capital therefore requires constitutional amendment through the prescribed procedures. The difference from a written provision is that an existing written capital clause would have to be deleted, whereas the customary rule can be abolished simply by introducing a new, contrary capital clause into the Constitution. For example, adding a provision that a particular locality in Chungcheong is the national capital would abolish the customary constitutional rule that Seoul is the capital.

Even a customGeneral constitutional custom established as a constitutional norm may naturally disappear if, with the passage of time and changes in constitutional circumstances, breaches occur and become general, leading to loss of national consensus on its legal force. In recognizing such extinction, a referendum or another method trusted by everyone might be considered to ascertain the people’s collective will. Here, however, no circumstances establishing such extinction have been confirmed. As explained above, Seoul’s capital status is established as customary constitutional lawGeneral constitutional custom, and no change in the relevant circumstances has occurred. Its abolition therefore necessarily requires constitutional amendment procedures.

d. Constitutionality of the Act providing for relocation (1) As explained above, Seoul’s status as capital of the Republic of Korea, although not expressly stated in the Constitution, is a constitutional customGeneral constitutional custom established over a long period and belongs to the so-called unwrittenGeneral constitutional custom Constitution. The Act definitively provides for relocation from Seoul to a particular locality in Chungcheong and prescribes the procedures. It therefore changes the unwritten constitutional rule that “the capital is Seoul.” (2) Yet there are no special circumstances indicating a new popular consensus that Seoul has become unsuitable as capital. Nor is there any basis at present for finding that the people’s legal conviction concerning its capital status has changed or disappeared.

Nor has any amendment expressly providing for relocation from Seoul been made through the procedures prescribed by the current Constitution. (3) The Act thus contradicts the unwritten customary constitutional ruleGeneral constitutional custom that Seoul is Korea’s capital. It also changes, through ordinary legislation and without the required constitutional procedure, an important constitutional matter alterable only by constitutional amendment. It is therefore unconstitutional. e. Infringement of the referendum right (1) Where a statute regulates, in place of the Constitution, a fundamental constitutional matter that must be addressed in the constitutional code, it violates the system of a rigid constitution and is unconstitutional regardless of whether its content conflicts with a superior constitutional norm.

Ordinarily, a statute is constitutionally objectionable when its content violates a constitutional provision or principle. But where it goes further and attempts to regulate through ordinary legislation a matter that must be governed and amended by the Constitution, it directly infringes the people’s sovereign authority over constitution-making and amendment. (2) As explained above, deciding where to establish or relocate the capital is a fundamental constitutional matter concerning national identity, which the people themselves must decide in accordance with the Constitution. Moreover, Seoul’s status as capital is unwritten customary constitutional lawGeneral constitutional custom. It retains constitutional force unless displaced through the constitutional-amendment procedure by a new constitutional provision establishing another capital.

Enacting the Act to relocate the capital to part of Chungcheong without constitutional amendment procedures thus changes a matter requiring constitutional amendment through ordinary legislation subordinate to the Constitution. A constitutional amendment must be proposed by a majority of the total National Assembly membership or by the President (Article 128(1)), approved by two-thirds or more of the total Assembly membership (Article 130(1)), and submitted to referendum within 30 days of approval. It requires participation by a majority of the parliamentary electorate and approval by a majority of those voting (Article 130(3), as cited in the source). Constitutional amendment therefore necessarily requires a referendum, and the people have the right to express their views by voting for or against it.

The Act nevertheless effects relocation, a matter requiring constitutional amendment, through ordinary legislation without those procedures. It thereby excludes, and infringes, the people’s fundamental right of political participation under Article 130: their right to vote in a constitutional-amendment referendum. f. Conclusion Without needing to examine the petitioners’ remaining arguments, the Act, which definitively decides relocation and prescribes its procedures, changes the unwrittenGeneral constitutional custom customary constitutional rule that Seoul is Korea’s capital through legislation without constitutional amendment procedures. The entire Act therefore infringes the right of the people, including the petitioners, to vote in a constitutional-amendment referendum and is unconstitutional.

5. Conclusion For the reasons above, the Act infringes the petitioners’ right to vote in a referendum concerning the national decision to relocate the capital and is unconstitutional. The Court therefore decides as stated in the Order, with the agreement of all participating Justices except for Justice Kim Young-il’s separate opinion in section 6 and Justice Jeon Hyo-sook’s dissent in section 7 below. 6. Separate opinion of Justice Kim Young-il I agree with the majority’s conclusion, but consider the Act unconstitutional because it infringes the petitioners’ referendum right guaranteed by Article 72. I find aspects of the majority’s reasoning that the Act violates the referendum right under Article 130 unpersuasive. My reasons therefore differ, as follows.

a. Content of the Act I substantially agree with the majority that the “new administrative capital” under the Act is no different from the “capital of the Republic of Korea,” and that moving to it means relocating the national capital. I also agree that the Act neither merely implements a relocation policy already decided through another state decision-making procedure nor merely regulates preparations in anticipation of a later relocation decision. The Act itself contains the relocation decision. b. Whether the decision to relocate is subject to referendum Article 72 states: “The President may submit important policies relating to diplomacyUnrelated / insufficient, national defense, unification, or other matters affecting national security to a national referendum if the President deems it necessary.”

It thus makes “important policies relating to diplomacy, national defense, unification, or other matters affecting national security” eligible for referendum. We must determine whether relocation falls within that category. (1) Whether it is a policy concerning national security (a) “National security” in Article 72 concerns the continued existence of the state—its existence or extinction. It includes not only existence and extinction themselves, but matters related to them: both what determines whether the state exists and what affects the meaning of its existence. “National security” in Article 72 does not necessarily mean a national emergency or a comparable national crisis.

The urgency associated with a national emergency or crisis is a requirement found in such language as “internal turmoil, external menace, natural calamity, or a grave financial or economic crisis” in Article 76(1); a “state of hostilities” or a need for “urgent measures” in Article 76(2); and “war, armed conflict, or a similar national emergency” in Article 77(1). It is not inherent in the concept of national security itself. Article 72 adds no requirement of temporal urgency. Its references to diplomacy, national defense, and unification are examples of policies concerning national security.

Policies on diplomacy, national defense, and unification are thus inherently policies concerning national security. Other policies concerning national security may also be submitted to referendum. (b) Relocating the capital concerns national security. A capital is both the symbolic city of a state and the center of its national life. Its location decisively affects the meaning of the state’s existence and is a core determinant of its identity. Even assuming that the capital is not the sole focal city in every political, economic, social, and cultural sphere, its location broadly and significantly affects citizens’ lives across all those spheres. Its location therefore affects the meaning of the state’s existence in that situation as well.

In every case, determining the location of the capital is therefore a matter of national security. Building, under this Act, a new administrative capital with the state’s core political and administrative functions and moving major institutions there necessarily concerns national security. This remains true even if Seoul retains all its previous functions as the central city in other fields—economic, social, and cultural. (c) Relocation also concerns unification, expressly mentioned in Article 72. In our divided country, the capital’s location matters not only before unification but also during the future unification process and after it.

If North and South Korea negotiate unification, cities that serve or have served as their respective centers at the time of negotiations—under present circumstances, Seoul and Pyongyang, among others—will be considered candidates for the capital of a unified Republic of Korea. The capital’s location is therefore highly significant during unification. Moreover, Article 3 defines the Republic’s territory as the Korean Peninsula and its adjacent islands. The Republic’s capital consequently symbolizes the entire peninsula, including the area north of the Military Demarcation Line, rather than only the southern area under its effective control. If unification restores effective control over the north, the existing capital will, absent another decision, become the capital of the unified Republic.

The capital’s location is therefore also highly significant after unification. Because it matters greatly before, during, and after that process, relocation necessarily concerns unification. (d) Relocation further concerns national defense, also expressly mentioned in Article 72. As the capital houses the core of state power, its location is necessarily among the most important considerations in national defense strategy. Especially in Korea, where politics has deeply influenced economic, social, and cultural life, its importance to defense strategy is exceptionally great. Moving the capital therefore inevitably entails, and requires, fundamental changes to defense strategy for the entire Republic, as well as for Seoul and the new administrative capital.

Relocation therefore necessarily concerns national defense. (e) A decision to relocate is consequently a policy concerning unification and national defense, as well as other matters affecting national security. (2) Whether it is an important policy Because a referendum displaces representative decision-makingUnrelated / insufficient for the matter submitted, the appropriate test of an “important policy” under Article 72 is whether it is sufficiently significant to require ascertainment of the people’s actual will, separately from their will as presumed through representative institutions. Relocation is a historic matter concerning the foundations of the state, its future, and the destiny of the entire nation. Public opinion is presently divided, raising fears of a crisis in national unity. Every citizen feels affected, and the issue commands the attention and interest of the whole public. Judged by these considerations, relocation is sufficiently significant to require ascertainment of the people’s actual will separately from their presumed will expressed through representatives.

A decision to relocate is thus an “important policy” under Article 72. (3) Conclusion It constitutes an important policy relating to diplomacy, national defense, unification, or other matters affecting national security under Article 72 and is eligible for referendum. c. Whether the President’s submission of a matter to referendum is discretionary First, unlike Article 130, Article 72 authorizes submission when the President considers it necessary. Its structure and wording thus appear to confer broad discretion. Second, submission occurs when a national consensus is needed on an important national-security policy and belongs to a sphere requiring political judgment. Third, by its nature, deciding whether to submit a policy under Article 72 involves more than interpretation of that article. The President must comprehensively consider the circumstances and determine what serves the national interest and protects fundamental rights. The decision concerns what is expedient as well as what the law requires. For these reasons, submission to referendum is an act of discretion.

d. Whether declining to submit relocation exceeds the limits of discretion (1) Limits on referendum discretion The rule of law requires every exercise of public power to remain subject to law, although the degree of legal constraint differs according to the action concerned. Even discretionary presidential submission to referendum cannot be free of law. Discretion must be exercised within the scope conferred by law—its external limit. Even within that scope, its exercise must serve the purpose for which it was granted and comply with constitutional and general legal principles—its internal limit. An exercise exceeding the external limit or abusing discretion by crossing the internal limit violates the legal norm conferring the power.

These principles apply to public power generally, not merely to administrative law. They likewise apply to presidential referendum decisions, notwithstanding differences in the breadth of discretion. A presidential decision that exceeds or abuses referendum discretion therefore violates Article 72, the provision conferring it. (2) Excess or abuse of discretion Specific criteria include whether the exercise of discretion (i) violates the purpose and spirit of the empowering provision, (ii) violates constitutional or general legal principles, or (iii) rests on improper motives.

(a) Violation of legislative purpose and spirit (i) Constraint by purpose and spirit Because discretion in exercising public power is conferred on state institutions by law, it must be exercised consistently with the legislative purpose and spirit of the empowering norm. Presidential referendum discretion must therefore conform to the purpose and spirit of Article 72. An exercise inconsistent with that provision’s institutional purpose exceeds or abuses discretion and violates Article 72. (ii) Institutional purpose of Article 72 Our Constitution generally adopts representative government: the directly elected President and National Assembly members make decisions of state for the people. Articles 72 and 130(2), however, incorporate direct democracy by providing for the people themselves to make such decisions in referendums. Article 72 therefore regulates more than the President’s power to submit questions; it also establishes the people’s referendum right and a fundamental institution of our constitutional system (see Constitutional Court, May 14, 2004, 2000Hun-Na1 [case number as transcribed in the source], Gazette 93, 574, 592; November 27, 2003, 2003Hun-Ma694 et al., Reports 15-2B, 350, 360; June 28, 2001, 2000Hun-Ma735, Reports 13-1, 1431, 1439). In a purely representative system, representatives represent the people as an abstract whole. This assumes a free mandate: voters control their representatives through elections but cannot issue instructions or orders on particular issues.

By contrast, when the people exercise sovereignty through representative bodies in a direct-democratic system, an imperative mandate is assumed: actual citizens issue specific binding instructions and may remove representatives who fail to carry them out. As noted, our Constitution combines pure representative government and direct democracy. It generally adopts the former but adopts the latter for referendums. The relationship between representatives and the people is therefore a free mandate based on representative government for ordinary national policy, but an imperative mandate based on direct democracy for matters eligible for referendum.

On policies eligible for referendum, representative institutions are accordingly bound by the actual will of the concrete citizenry. They may neither decide contrary to that will nor disregard an anticipated divergence. (iii) Relationship between actual popular will and discretion Since the mandate concerning referendum policies is imperative, the sovereign people, as principals, may withdraw it for a specified matter. Holding a referendum means that the people have withdrawn the authority delegated to representatives on that matter and decided it themselves. Even where withdrawal has not actually been confirmed, there may be substantial grounds for believing that a majority wishes to withdraw the mandate and decide directly by referendum. If representatives disregard such a wish and decide the matter themselves, they directly contravene the purpose and spirit of Article 72 and exceed or abuse their discretion.

This is so regardless of whether the representatives’ substantive decision accords with the people’s actual will. Furthermore, because representatives may not decide referendum-eligible policies contrary to that will, such a decision itself exceeds the delegated authority and thus the external limits of discretion. Even where the actual popular will has not been established, if substantial grounds indicate that the representatives’ will differs from it, disregarding the presumed popular will and deciding oppositely exceeds or abuses discretion contrary to the spirit and purpose of Article 72.

(iv) The actual will of our people on relocation Opinion polls around January 2004, when the Act was enacted and promulgated, showed evenly divided support and opposition to moving major state institutions to a new administrative capital. Support was declining and opposition increasing. Support had been high when politicians originally promised a referendum on relocation, but opposition grew as introduction of the bill and presidential statements made a referendum increasingly unlikely. Polls from June 2004 onward show that approximately 60 percent favored deciding the issue by referendum.

These facts provide substantial grounds for finding that the people wish to withdraw their mandate and decide relocation, including the transfer of major institutions, themselves rather than delegate it to the President or National Assembly. There are also substantial grounds for finding opposition to relocation on its substantive merits. (v) Conclusion In these circumstances, declining to submit relocation to referendum contravenes Article 72’s purpose and spirit and is an unconstitutional excess or abuse of discretion. (b) Violation of constitutional or general legal principles Many citizens want a referendum, and the President himself said the issue would be submitted to one. Deciding it by Assembly legislation instead has produced still greater division. The refusal to submit relocation is thus objectively and manifestly irrational and violates the prohibition of arbitrariness.

The President pledged as a candidate to submit relocation to referendum. After election, he promised a referendum as an alternative course and did not completely rule it out even immediately after the Act’s enactment and promulgation on January 16, 2004. After the seventeenth National Assembly election on April 15, 2004, however, he publicly stated that no referendum would be held. These facts, together with the poll results above, support the inference that the people trusted that relocation would be submitted to referendum and that their representatives would not act against their will.

Nevertheless refusing a referendum betrays that trust and violates the principle of protection of legitimate expectations. Declining to submit the relocation decision therefore violates constitutional and general legal principles and is an unconstitutional excess or abuse of discretion. (3) Duty to submit to referendum Because refusing a referendum would exceed or abuse discretion, a President exercising discretion lawfully has no option other than submission. The President therefore has a duty to submit the relocation decision to referendum.

e. Whether the petitioners possess a referendum right concerning relocation (1) Content of the right The referendum right under Article 72 is a constitutionally recognized fundamental right of political participation (see Constitutional Court, June 28, 2001, 2000Hun-Ma735, Reports 13-1, 1431, 1439). It first includes the right to demand guarantees for a liberal-democratic referendum system in accordance with Article 72. For example, if legislation narrows the category of important policies beyond the constitutional provision’s intended scope or excludes universal, equal, direct, secret, or free voting, citizens may directly and presently challenge its constitutionality on the basis of their referendum right.

Article 72 also includes a referendum right concerning a specific matter. In principle, this right becomes exercisable only when the President submits the matter, because it is subject to that suspensive condition. Once realized, it includes the right actually to vote on the particular issue. Article 72 further includes the right to demand submission when the President has a legal duty to submit a policy but fails to do so. That presidential duty is owed to the people. As its holders, the people possess the corresponding right to demand submission.

In that situation, the President is failing to fulfill the duty to satisfy the suspensive condition. The right to demand submission is a claim for performance of that duty: an instrumental, procedural right intended to restore legality where presidential nonperformance unlawfully infringes the people’s right to vote on the policy. Because the demand right presupposes the substantive referendum right, the people possess a right to vote on the particular matter as the substantive aspect of their demand right even before actual presidential submission. The referendum right may thus be understood as including the right to demand a referendum.

(2) The referendum right concerning relocation Where the President has a duty to submit a policy, the people possess both the right to demand submission and the broader referendum right even before submission occurs. As explained in d(3), the President must submit the relocation decision. The people may therefore demand that he do so and already possess a specific referendum right concerning that decision before actual submission. The petitioners, as citizens, presently hold that right.

f. Whether the Act infringed the petitioners’ referendum right (1) Infringement by the Act’s content No referendum decided relocation before the Act was enacted and took effect. As explained in section a, the Act itself contains the relocation decision. Article 1 of its supplementary provisions states: “This Act shall enter into force three months after promulgation.” It therefore takes effect unconditionally after three months, without a separate referendum. In determining the state’s will on relocation, the Act definitively excludes a referendum and reaches a final decision through legislation.

By the Act’s entry into force itself, this exclusion necessarily infringes the petitioners’ referendum right concerning relocation described above. (2) Infringement through succession to a defect in introducing the bill The Government introduced the bill. Government bills are submitted in the President’s name following State Council deliberation (Articles 82 and 89). As explained, this bill excluded the people’s referendum right on relocation. Its introduction can therefore be assessed as the President’s official decision not to hold a referendum.

As explained in section d, declining to submit relocation exceeds or abuses presidential discretion. Introducing the bill on the basis of that decision was consequently a defective act violating Article 72. Introduction of a bill is only an internal act between state institutions and produces no direct legal effect on citizens. It is therefore not an exercise of public power under Article 68 of the Constitutional Court Act and cannot itself be challenged by constitutional complaint (Constitutional Court, August 31, 1994, 92Hun-Ma174, Reports 6-2, 249, 265). Nevertheless, presidential introduction and Assembly passage together form the core legislative procedure. They are successive acts serving the single purpose of enactment. A defect in introduction is therefore itself a defect in enactment, or at least passes to the Assembly’s approval, ultimately rendering enactment defective.

As explained, presidential introduction of this bill was defective under Article 72. That defect passed to the act of approving the bill, so the Act itself bears the same defect and infringes the petitioners’ constitutional referendum right. (3) Conclusion The Act’s enactment and implementation infringed the petitioners’ fundamental referendum right under Article 72. g. Customary constitutional law and the Article 72 referendum right (1) Matters eligible under Article 72 and customary constitutional lawGeneral constitutional custom Article 72’s category of “important policies relating to diplomacyUnrelated / insufficient, national defense, unification, or other matters affecting national security” does not depend on whether a policy is a constitutional matter. It applies irrespective of that distinction.

Even assuming, with the majority, the existence of a customary constitutional ruleGeneral constitutional custom that “the capital of the Republic of Korea is Seoul Special City,” a decision concerning the capital is eligible for referendum under Article 72. For the reasons given above, the President must submit it, and the petitioners possess the corresponding referendum right. (2) Relationship between referendum rights under Articles 72 and 130 (a) If the capital’s location is a constitutional norm, a decision to change it—to relocate—must be made by the constitutional-amendment power through Chapter X procedures. It must therefore undergo National Assembly approval and the referendum prescribed by Article 130, and the people have the corresponding referendum right.

(b) Even where a matter ultimately requires constitutional amendment, Article 72 permits a referendum to ascertain the people’s actual will before an amendment is proposed. Once that referendum determines the direction of policy, specific amendment procedures can proceed on that basis. A referendum under Article 130 therefore does not exclude one under Article 72. An Article 72 referendum is permissible, however, only insofar as it does not usurp Article 130. Once an Article 130 referendum has occurred, another under Article 72 is pointless. The Article 72 right may therefore be said to arise subject to the resolutive condition of an Article 130 referendum being held.

This relationship applies whenever the policy requires constitutional amendment, whether it concerns written or unwrittenGeneral constitutional custom constitutional law. (c) Customary constitutional normsGeneral constitutional custom present an additional relationship. The people’s legal conviction concerning a constitutional practiceGeneral constitutional custom—what the majority calls “national consensus”—is both a requirement for the formation of a customary constitutional normGeneral constitutional custom and a condition of its continued existence. Even an established customary constitutional norm loses its constitutional force the moment that conviction disappears. Determining whether the conviction exists is within the Constitutional Court’s authority and duty to interpret whether a constitutional norm exists. A judicial decision is therefore one means of confirming it.

Determining whether that popular legal conviction exists is also an important national-security policy under Article 72 and is eligible for referendum. Such a determination itself qualifies; even if that view is disputed, there can be little disagreement that determining whether legal conviction concerning the capital’s location exists qualifies. If a referendum decides contrary to an existing customary constitutional rule, it confirms that the supporting conviction has disappeared. An Article 72 referendum is therefore another means of establishing that fact. A constitutional decision departing from an existing customary constitutional norm must consequently follow one of these routes: (i) constitutional amendment under Article 130 and related provisions; (ii) a preliminary Article 72 referendum establishing whether the people’s legal conviction has disappeared; or (iii) a preliminary Constitutional Court determination of that question.

The people hold, as fundamental rights, an Article 130 referendum right in relation to route (i) and an Article 72 referendum right in relation to route (ii). These rights are alternatives. (3) Infringement by the Act Taking these points together, if a customary constitutional rule has existed that “the capital of the Republic of Korea is Seoul Special City,” the petitioners, as citizens, possess the following rights concerning relocation: an Article 130 referendum right; an Article 72 referendum right subject to the resolutive condition that an Article 130 referendum be held; and an Article 72 referendum right alternative to the Article 130 right.

The Act excludes all these referendum rights. On the premise that the customary constitutional norm exists, it therefore infringes them all. (4) Questions concerning the majority’s opinion (a) The majority acknowledges that an Article 72 referendum might confirm the extinction of customary constitutional lawGeneral constitutional custom. Nevertheless, it reasons that, because no change or disappearance of the people’s legal conviction that Seoul is the capital has been established, abolition necessarily requires constitutional amendment, and the Article 130 right has been infringed. This reasoning implies that unless such change or disappearance has already been established, an Article 72 referendum cannot be held and Article 130 must be followed. It would allow an Article 72 referendum to determine whether conviction still exists only when another means had already established its change or disappearance.

But if another method has established that the conviction has changed or disappeared, there is no need for an Article 72 referendum. Such a referendum is needed precisely where that fact has not been confirmed. Beyond cases of uncertainty, even where conviction is presumed to persist, an Article 72 referendum may formally establish its persistence in response to a contrary state policy. A referendum can be held whether its result confirms disappearance or continued existence. The right does not appear or disappear according to predictions of the outcome.

Moreover, a prediction about legal conviction may differ from reality. Conviction can also change: however firmly held at one time, it may later disappear, so the possibility of a referendum remains. Unless its existence or absence has been established through a constitutionally valid formal method, such as an Article 130 referendum, the people continue to possess the alternative Article 72 right. I therefore question the majority’s reasoning that the absence of confirmed change or disappearance necessarily requires constitutional amendment. (b) Under the majority’s approach, relocation must always be decided through amendment. The consequence may be that any future change in the Republic’s capital must expressly appear in the constitutional text.

Even if the capital’s location is a constitutional norm, it may take either written or unwrittenGeneral constitutional custom form. Until now, our people may be said to have chosen regulation by an unwrittenGeneral constitutional custom norm. Only the constituent or amendment power can determine which form a constitutional norm takes. If this Court’s majority decision transforms the rule concerning the capital from customaryGeneral constitutional custom to written constitutional law, that is effectively an exercise by the Court of constitutional-amendment authority. On the findings in d(2), moreover, the referendum actually desired by the people appears to be one under Article 72, rather than an Article 130 referendum forming part of an amendment procedure that presupposes Assembly approvalUnrelated / insufficient.

Such a consequence of the majority’s approach would therefore also contradict the will of the amendment power. Alternatively, the majority might mean that amendment is required only while the legal conviction persists; once it disappears, a new customary constitutional ruleGeneral constitutional custom may regulate the capital’s location. On that interpretation, it does not necessarily confine the rule to written form. But that assumes the possibility of conviction disappearing later and of a referendum confirming its disappearance. If the Act excludes both amendment procedures and a referendum confirming such disappearance, it infringes the Article 72 right as well as the Article 130 right.

Just as the people may reject relocation in an amendment procedure, they may reject a finding that legal conviction has disappeared in an Article 72 referendum. Even if the majority’s present judgment definitively establishes that conviction persists, an Article 72 referendum may still precede amendment procedures. The Act’s exclusion of even that possibility plainly infringes the Article 72 right. (c) Where a referendum right is infringed concerning an important national-security policy that is not a constitutional norm, it is unclear how the majority would protect the people’s fundamental rights.

When the Act plainly infringes the Article 72 right, relying on another rationale without adjudicating that infringement is inappropriate in light of the implications for similar future cases. (d) More fundamentally, reasonable disagreement is possible over whether the capital’s location must always be regulated exclusively by the Constitution. It is difficult to declare conclusively that it is customary constitutional lawGeneral constitutional custom. There are ample means to correct the unconstitutional situation within the existing constitutional framework, without constitutional amendment. I question whether the majority has unnecessarily chosen a strained path premised on amendment.

(5) Conclusion Even if, as the majority holds, a customary constitutional ruleGeneral constitutional custom establishes Seoul Special City as the Republic’s capital, it is appropriate to find that the Act infringes the petitioners’ Article 72 referendum right. Finding an infringement of Article 130 on the majority’s reasoning is problematic. h. Whether infringement of the fundamental right is justified (1) Function of Article 37(2) in the referendum system Although the petitioners possess the Article 72 referendum right as a fundamental right, Article 37(2) permits statutory restrictions when necessary for national security, maintenance of order, or public welfare.

For example, substantial grounds may indicate that the people actually wish a policy to be decided by referendum. Declining submission would then prima facie exceed or abuse discretion, placing the President under a duty to submit and giving the people a referendum right. Even so, withholding a referendum may constitutionally restrict that right if justified under Article 37(2), satisfying the requirements concerning the purpose, form, and means of restriction. Fears that individuals could contest the constitutionality of every national policy by alleging infringement of referendum rights are therefore groundless.

No constitutional violation arises so long as the restriction is reasonably imposed by Assembly legislation in accordance with Article 37(2). (2) Justification of this Act Article 1 states its purpose: “This Act aims to contribute to balanced national development and stronger national competitiveness by prescribing methods and procedures for constructing a new administrative capital, in order to remedy the adverse effects of the concentration of core national functions in the capital region and respond to the simultaneous trends of globalization and localization.” These purposes do not include deciding relocation solely by Assembly resolution without a referendum. Nor can any other need relating to national security, public order, or public welfare be found that justifies excluding the referendum right.

The Act’s restriction of the petitioners’ referendum right therefore lacks justification. i. Conclusion The Act contains no express provision declaring that it excludes the referendum right and itself decides relocation. Article 2(1) and (2), Articles 6, 8, and 12, and Article 1 of the supplementary provisions come comparatively close to doing so. As explained, however, the interpretation that the Act excludes that right and decides relocation follows reasonably from the Act as a whole, as well as from those provisions.

The entire Act, not merely the specified provisions, therefore infringes the petitioners’ referendum right. Even if only those provisions were held unconstitutional, the remainder derives its purpose from the relocation decision and could not independently operate. The entire Act would be inoperative, warranting a declaration of unconstitutionality for the whole. The Act in its entirety thus violates the Constitution by infringing the petitioners’ fundamental referendum right guaranteed by Article 72. Without examining the remaining issues, I would decide as stated in the Order. 7. Dissenting opinion of Justice Jeon Hyo-sook a.

I agree that the Act contains a decision to relocate the capital. I cannot, however, accept as an interpretation of our Constitution the majority’s reasoning that relocation can occur only through constitutional amendment and that the Act consequently infringes the petitioners’ referendum right. My views follow. (1) We should first consider the constitutional importance of a capital’s location under contemporary constitutionalism and constitutional theories of the welfare state. Historically, its location was important to national identity. Under a modern constitutionalist constitution, however, it is difficult to regard it as an essential constitutional matter or one that the people must decide directly under the principle of popular sovereignty. [The source’s wording around “principle of popular sovereignty” is grammatically incomplete.]

The fundamental purpose of a constitution is to realize the people’s freedoms and rights by controlling and rationalizing state power. Our Constitution’s basic ideal is a state governed by law that protects fundamental rights against abuses of state power (Constitutional Court, April 28, 1992, 90Hun-Ba24, Reports 4, 225, 230). The capital’s location is merely an “instrument” for achieving that purpose and is difficult to regard as directly affecting its realization. The people still need a source of emotional unity. But because liberal democracy and constitutionalism are our principal values, one cannot conclude that the location itself must necessarily be determined directly by the constituent or amendment power.

(2) It is difficult to recognize the customary factGeneral constitutional custom that “Seoul is the capital” as a normative rule of the “customary constitutional lawOpinio juris” described by the majority. Even if, as the majority argues through detailed historical andUnrelated / insufficient traditional materials, Seoul’s capital status has long been a practiceLongus usus self-evident to our people, it is difficult to find the requisite legal conviction that it is a legal norm—what the majority describes as recognition “by all citizens as a binding legal norm concerning the organization of our state.” For the majority’s argument to hold, that conviction must concern a normative proposition that Seoul ought to be the capital as the symbolically significant seat of major constitutional institutions. It must also include the belief that this norm stands above ordinary legislation within substantive constitutional law and has the same force as the written Constitution, such that it can be changed only through amendment.

Recognizing all these forms of legal conviction is implausible given that relocation has only recently become a major public issue. Above all, legislators from both government and opposition parties overwhelmingly supported the bill. During its examination they showed no awareness that relocation was a constitutional matter supported by popular constitutional conviction, or that it lay outside their legislative competence because amendment procedures were necessary. The majority cannot avoid a leap in legal logic in deriving the constitutional proposition “Seoul ought to be the capital” from the factual proposition “Seoul is the capital.”

(3) In a legal system with a written constitution, customary constitutional law cannot have force “identical” to that constitution or force capable of nullifying a particular written provision. As the majority states, customary constitutional law can be recognized because “even a written constitution cannot comprehensively regulate every constitutional matter.” Nevertheless, the constitutional code is enacted directly by the people, as constituent power, through an explicit expression of will. It occupies the highest place in the legal system, and its contents can be amended only through strict procedures. Mere characterization as customary constitutional law supplies no basis for giving it equal force.

The Constitution was committed to writing to realize its intended control of state power and maximum protection of human rights with firm, objectively indisputable stability. Above all, a written constitution’s distinctive feature is its powerful binding force over every state authority as the supreme legal norm. That force is possible because an explicit expression of popular sovereignty has been assembled through a specific constitution-making procedure. Custom alone cannot possess that superior force. The majority’s claim of equal force therefore lacks a constitutional basis. This Court’s interpretation must begin with the Constitution; unwrittenGeneral constitutional custom constitutional law expressed through precedent must likewise rest upon it.

Under a written constitution, customary constitutional law must have only supplementary effect. So long as a rigid written constitution exists, customary or unwrittenGeneral constitutional custom constitutional law cannot arise or persist independently of it. It can do so only by developing, completing, and continuing to shape the written Constitution’s principles, always in harmony with them.[13] Otherwise, constitutional practices could alter the written Constitution, ultimately allowing unwrittenGeneral constitutional custom constitutional practicesGeneral constitutional custom to prevail over the code and dominate national life.[14] Customary constitutional law can therefore be recognized only as a supplement to the written Constitution. It certainly cannot have the effect of amending it.

That principle holds even where the content of customary constitutional lawGeneral constitutional custom is a “constitutional matter” important enough to deserve direct constitutional provision. Its existence supplies no basis for a power to change the written Constitution. Such a power would undermine constitutional stability and conflict with the constituent power’s decision to establish a rigid written code. Even where a matter was so obvious at constitution-making that the people felt no need to write it down, they can at any time exercise their amendment power through representatives and a referendum to incorporate the customary ruleConstitutional content in the code, thereby giving it the force of the written Constitution.

Just as conduct cannot be punished without statutory provision, however necessary punishment might seem, legal force necessarily differs according to whether a rule appears in the written Constitution. (4) The majority says that customary “constitutional law,” unlike customary “statute law,” is “constitutional law” and must therefore be changed through amendment. This clings to formal conceptual logic and fails to reflect substance. Constitutional content is not confined to the written Constitution; it also appears in statutes and customary lawGeneral constitutional custom. Such content is commonly called the “constitution in the substantive sense.” “Customary constitutional law” means merely that substantive constitutional matters are regulated by customGeneral constitutional custom. The label “customary constitutional lawGeneral constitutional custom” does not automatically give it the same force as the written Constitution.

The written Constitution’s strength derives from an explicit expression of popular sovereignty through a specific constitution-making process. Custom involves neither that explicit expression nor that procedure. Instead, it is recognized through the existence of practice and popular legal conviction, elements difficult to establish objectively and clearly. To bypass this difficulty and accord equal force, the majority limits customary constitutional lawGeneral constitutional custom to “fundamental matters of such constitutional importance that they must be regulated by the Constitution with force superior to statute” or “fundamental and central matters inappropriate for statutory regulation.” That definition is inappropriate, first because it makes the customary constitutional law needed to supplement the written Constitution excessively narrow and makes future recognition of customary constitutional lawGeneral constitutional custom more difficult.

Moreover, “fundamental matters of such constitutional importance that they must have force superior to statute” are neither determined a priori nor logically deduced from some proven proposition. Nor is there an identifiable constitutional criterion for “matters inappropriate for statutory regulation.” A matter ordinarily suitable for statute has constitutional force if included in the Constitution. Conversely, including in a statute a matter worthy of constitutional provision is not inherently wrong. The majority cites the capital, Korean as the national language, and Hangul as the national script as matters of national identity absent from the Constitution. It gives no clear reason why they cannot be regulated by statute.

The majority calls these “matters for the people themselves to decide.” But why may the National Assembly, the people’s representative body, not gather their democratic will and decide them? Would the conclusion differ if, as in other countries, constitutional amendment occurred in Parliament without a referendum? Our national flag, Taegeukgi, and the official use of Hangul are likewise fundamental to national identity and constitutionally important. Yet they are regulated by the Regulations on the National Flag of the Republic of Korea (Presidential Decree No. 11361, enacted February 21, 1984) and the Act on the Exclusive Use of Hangul (Act No. 6 of October 9, 1948). Their legal form cannot be called erroneous.

Designating the capital is likewise a substantive constitutional matter, and regulating it by statute cannot be called unconstitutional. The range of matters to be placed in the constitutional code or given supreme legal force cannot be logically deduced. Statutory designation of the capital, or relocation through Assembly legislation without amendment, creates neither a contradiction in our legal system nor a distortion of the written Constitution. Changes to customary constitutional lawGeneral constitutional custom concerning the capital need not necessarily take the legislative form of constitutional amendment. Amendment means expressly revising or replacing provisions or wording in the constitutional code through prescribed procedures to enhance its normative function. It therefore concerns the Constitution in the formal sense—the written Constitution.

The constituent power made amendment much more rigorous than ordinary legislation because the code expressly embodies the sovereign’s will and must not be altered lightly. Conversely, changing constitutional matters absent from the text, or unwritten constitutional lawGeneral constitutional custom, is not constitutional amendment and may be accomplished through the Constitution’s ordinary representative-democratic procedure: legislation.[15] To treat customary constitutional lawGeneral constitutional custom as subject to amendment would thus require rigorous justification beyond formal conceptual logic, which the majority has not supplied. The majority may assume that the Assembly enacted the Act without adequately gathering public opinion. But if it hastily legislated on relocation for partisan reasons rather than representing the public, ultimate responsibility—provided the Constitution and National Assembly Act’s procedures were observed—must rest with the people who elected it. The Assembly is, after all, their representative institution, charged with reflecting their will.

Under the majority’s reasoning, even if the Assembly had gathered public opinion fully through public hearings and other hearings and passed the bill unanimously, it would be unconstitutional solely for the formal reason that amendment procedures were not followed. That conclusion is difficult to justify. (5) Requiring constitutional amendment to change the customary ruleGeneral constitutional custom that “Seoul is the capital” would impermissibly allow customary constitutional lawGeneral constitutional custom to alter the Assembly’s constitutionally conferred legislative power. Holding, as the majority does, that the Act is unconstitutional because it changes that rule without amendment procedures accords customary constitutional lawGeneral constitutional custom force superior to the Assembly’s legislative authority.

The Constitution provides that “legislative power shall be vested in the National Assembly” (Article 40). Unless otherwise provided, that power is comprehensive. Its holder is none other than the representative body directly elected by the people. The Constitution adopts representative government as the basic means of realizing popular sovereignty and liberal democracy, entrusting implementation of those ideals through legislation to representatives democratically legitimated by election. Assembly legislation complying with constitutional procedures and substantive requirements is thus legitimate as representing the will of the whole people. Britain’s parliamentary sovereignty and France’s understanding of parliamentary legislation as the expression of the people’s general will illustrate the close relationship between the people and Parliament.

Absent a separate constitutional restriction, it is difficult to find a substantive reason why a constitutional custom concerning relocation cannot be changed by Assembly legislation. In many countries, Parliament can amend the Constitution without a popular referendum, simply using a higher quorum than for statutes—usually a majority of the total membership and approval by two-thirds of those present. That is because Parliament is the people’s representative body and a principal institution exercising sovereignty on their behalf. This Act passed by 167 votes out of 194 voting, with 13 against and 14 abstentions: an overwhelming majority exceeding both a majority of the total membership and two-thirds of those present. Whatever political criticism may be made that it failed to reflect or betrayed public opinion, one cannot constitutionally conclude that the matter lay outside legislators’ authority.

Such a conclusion would use customary constitutional law to deny the Assembly’s constitutional legislative competence, thereby changing the Constitution, and must not be permitted. Customary constitutional lawGeneral constitutional custom that has not undergone constitution-making or amendment cannot be given force identical to the written ConstitutionGeneral constitutional custom or capable of changing other constitutional provisions. That reasoning departs from the written constitutional system by recognizing through precedent an exercise of popular sovereignty not contemplated by the Constitution. Under such a system, sovereignty must be exercised within the written Constitution, apart from exceptional cases such as the right of resistance. In practice, neither state institutions nor this Court can easily identify the people’s true will, and citizens may be divided over a particular issue. Exercise of popular sovereignty by extra-constitutional means, outside the objectively established institutional procedures, must therefore not be recognized.

The majority invokes popular sovereignty, stating that “the creation of constitutional norms through customGeneral constitutional custom is one aspect of the exercise of popular sovereignty.” But it is unclear whose will, and how much of the public’s will, such an exercise represents, or whether the process of gathering it is comparable to constitution-making or amendment. It is inappropriate to recognize such an exercise through interpretation rather than the Constitution’s express, objective institutional arrangements. Recognition by a noninstitutionalized method cannot guarantee procedural or democratic legitimacy and risks confusion in citizens’ legal lives and the state’s constitutional order.

These consequences must be avoided, however important or exceptional the issue. Matters absent from the Constitution must be left to political decision-making structures, at least unless they concern a national crisis. If the Act fails to reflect the people’s will, they can still communicate that will through their representatives and seek legislative amendment. If legislators disregard it for partisan reasons, voters can defeat them at the next election. For the present, political responsibility ultimately rests with the people who elected those legislators. (6) In conclusion, changing the customary constitutional ruleGeneral constitutional custom making Seoul the capital does not necessarily require constitutional amendment, and the current Constitution supplies no basis for excluding Assembly legislation.

The Act therefore cannot plausibly infringe the referendum right under Article 130(2). b. I share the separate opinion’s view that relocation is an important national policy requiring careful consultation with the public. I cannot, however, accept its argument that the Act infringes the Article 72 referendum right, for the following reasons. The separate opinion finds an infringement because the President abused discretion by failing to submit relocation under Article 72. But that article grants the President discretion whether to submit important national-security policies (see Constitutional Court, May 14, 2004, 2004Hun-Na1, Reports 16-1, 609, 649). Whether that discretion exists cannot depend on the issue’s importance.

Whether Article 72 grants excessive discretion and effectively realizes popular sovereignty and direct democracy is a separate question. The current Constitution offers no basis for another interpretation. Because the provision gives the President discretion whether to submit a matter, its referendum right becomes exercisable only upon submission. Its protected scope cannot be extended to include demanding that the President submit a particular important policy. Moreover, because the discretion is directly conferred by the Constitution, administrative-law doctrines concerning excess or abuse of discretion do not apply.

If the President submitted an ineligible matter, such as a vote of political confidence in himself, that would violate Article 72’s express requirement of an “important policy affecting national security,” rather than constitute excess or abuse of discretion. Furthermore, our Constitution fundamentally adopts representative government, under which directly elected representatives make decisions for the people. So long as that system functions normally, there is no constitutional basis for requiring even relocation to be decided by direct popular vote. Accordingly, even though the President did not submit the administrative-capital policy and the referendum right was consequently not exercised, no infringement of the petitioners’ referendum right is possible.

c. For these reasons, the allegations of infringement of referendum rights are inadmissible because no possible infringement of such a right is established. Although I do not discuss them in detail here, the petitioners’ other fundamental-right claims likewise fail the requirements of personal, direct, or present injury. This case is therefore inadmissible for a determination on the merits by the Constitutional Court through a constitutional complaint, the ultimate and supplementary remedy for infringements of fundamental rights. October 21, 2004 Presiding Justice: Yun Young-chul ____________________________ Justices: Kim Young-il ____________________________; Kwon Seong ____________________________; Kim Hyo-jong ____________________________; Kim Kyung-il ____________________________; Song In-jun ____________________________; Joo Sun-hoe ____________________________; Jeon Hyo-sook ____________________________ Justice in charge: Lee Sang-kyung ____________________________

Appendix 1 List of petitioners [Personal names are retained in Korean. Addresses and numbering are reproduced as supplied; apparent source errors are not silently corrected.] 1. 최상철 — Seoul Seocho-gu Banpo 2-dong Sinbanpo Hanshin Phase 1 Apartments Building 19 Unit 304 2. 강현표 — Busan Saha-gu Dangni-dong 344-10 3. 강홍빈 — Seoul Jongno-gu Cheongun-dong 1 Byeoksan Village Building 5 Unit 21 4. 권영필 — Seoul Songpa-gu Oryun-dong Olympic Apartments Building 251 Unit 709 5. 김선웅 — Seoul Seongdong-gu Haengdang-dong Sambu Apartments Building 104 Unit 301 6. 김영남 — Seoul Dongdaemun-gu Imun-dong 257-94 7. 김형국 — Seoul Jongno-gu Pyeongchang-dong 560-17 8. 남영우 — Seoul Seongbuk-gu Seokgwan-dong Doosan Apartments Building 114 2401

9. 류동길 — Seoul Songpa-gu Sincheon-dong Jinju Apartments Building 4 705 10. 박상규 — Gangwon Chuncheon City Seoksa-dong Daewoo Apartments Building 110 303 11. 박종화 — Seoul Seocho-gu Bangbae-dong Gyeongnam Apartments Building 3 901 12. 백수현 — Incheon Nam-gu Yonghyeon 2-dong 531-24 13. 심귀보 — Seoul Dongjak-gu Noryangjin 1-dong 323 Wooseong Apartments Building 106 805 14. 안성수 — Gwangju Nam-gu Bongseon 2-dong 469-1 Kumho Apartments Building 1 1201 15. 윤도영 — Seoul Gwangjin-gu Gwangjang-dong Hyundai Parkville Building 1009 1302 16. 이동훈 — Seoul Jongno-gu Buam-dong 369-76

17. 이영인 — Seoul Songpa-gu Bangi-dong 89-1 18. 임강원 — Seoul Gangnam-gu Yeoksam-dong Gaenari Apartments Building 35 301 19. 장성수 — Jeju Ildo 2-dong 113-7 Daeyu Daelim Apartments Building 305 303 20. 전운성 — Gangwon Chuncheon City Seoksa-dong Daewoo Apartments Building 110 902 21. 정덕주 — Busan Saha-gu Gupyeong-dong 41-7 22. 정영옥 — Naju City Daeho-dong Hoban Regency Ville Building 102 901 23. 정환용 — Gwangju Buk-gu Unam-dong Kumho Town Building 3 903 24. 조순철 — Gwangju Gwangsan-gu Sochon-dong 290-32 Onsegye Apartments Building 102 1001

25. 지해명 — Chuncheon City Gyo-dong 113-144 26. 최완석 — Gwangju Nam-gu Songha-dong Kumho Apartments Building 102 1604 27. 최용호 — Daegu Suseong-gu Manchon 1-dong Metro Palace Building 109 1009 28. 한영환 — Seoul Seongdong-gu Oksu-dong Hannam Heights Apartments Building 1 201 29. 임동규 — Seoul Gangdong-gu Seongnae-dong 40-22 30. 권영하 — Seoul Yeongdeungpo-gu Yeongdeungpo-dong 4-ga 165 31. 김갑룡 — Seoul Gwanak-gu Bongcheon-dong Prugio Apartments 1403 32. 김귀환 — Seoul Seocho-gu Umyeon-dong 178-14

33. 김기성 — Seoul Gangbuk-gu Suyu 4-dong 573-1 34. 김문태 — Seoul Mapo-gu Sinsu-dong 399 35. 김배영 — Seoul Guro-gu Gung-dong 189-29 36. 김성구 — Seoul Eunpyeong-gu Gusan-dong 209-9 37. 김예자 — Seoul Dongdaemun-gu Dapsimni 4-dong 2-70 38. 김유현 — Seoul Mapo-gu Seongsan 2-dong 200-73 39. 김종문 — Seoul Jungnang-gu Myeonmok 7-dong 661-63 40. 김종화 — Seoul Yangcheon-gu Sinjeong-dong 980-6

41. 김춘수 — Seoul Yeongdeungpo-gu Singil 1-dong 95-200 42. 김황기 — Seoul Dongjak-gu Daebang-dong Hyundai Apartments Building 103 2102 43. 명영호 — Seoul Yongsan-gu Ichon-dong Gangchon Apartments Building 101 1108 44. 박덕경 — Seoul Dongjak-gu Sadang 4-dong 1000-11 Sangsin Apartments Building 2 103 45. 박주웅 — Seoul Dongdaemun-gu Dapsimni-dong 470-20 46. 백의종 — Seoul Mapo-gu Dohwa 1-dong 1-28 47. 성하삼 — Seoul Jung-gu Sindang-dong 251-98 48. 송창대 — Seoul Dongdaemun-gu Imun 2-dong 321-37

49. 신기철 — Seoul Gangbuk-gu Suyu 6-dong 348-11 50. 안병소 — Seoul Gangnam-gu Apgujeong 2-dong 481 Hyundai Apartments Building 95 803 51. 유승주 — Seoul Gwangjin-gu Guui-dong 72-38 52. 윤학권 — Seoul Dobong-gu Dobong 2-dong 30-1 53. 이광국 — Seoul Gangdong-gu Cheonho-dong 563 Donga Apartments 1307 54. 이국희 — Seoul Gangdong-gu Gil 1-dong 378-1 SM Dream Ville 205 55. 이은석 — Seoul Seodaemun-gu Hongeun 3-dong Miseong Apartments Building 3 701 56. 이일희 — Seoul Yeongdeungpo-gu Daerim 3-dong 810-42

57. 이임주 — Seoul Gangnam-gu Irwon-dong 69-1 Daewoo Apartments Building 52 302 58. 이종은 — Seoul Nowon-gu Sanggye 8-dong Jugong Apartments Building 1611 1403 59. 이종필 — Seoul Yongsan-gu Itaewon 226-3 60. 이지철 — Seoul Gangdong-gu Seongnae-dong 459-9 61. 이진식 — Seoul Dongjak-gu Heukseok-dong 195-17 62. 이치화 — Seoul Jungnang-gu Sinnae-dong Dongseong Apartments Building 401 1305 63. 이한기 — Seoul Gangseo-gu Gayang 1-dong Daea Apartments Building 108 1101 64. 이헌구 — Seoul Jongno-gu Tongin-dong 6-306

65. 이훈구 — Seoul Yangcheon-gu Mok-dong 515-22 66. 임승업 — Seoul Eunpyeong-gu Daejo-dong 206-34 67. 임한종 — Seoul Seocho-gu Bangbae-dong 725 Sinsamho Apartments Building Ma 1005 68. 장영호 — Seoul Geumcheon-gu Gasan-dong 237-127 69. 전대수 — Seoul Seongdong-gu Seongsu 2-ga 1-dong 571-24 70. 전명환 — Seoul Dongdaemun-gu Cheongnyangni 776 71. 정병인 — Seoul Dobong-gu Chang 5-dong Donga Green Apartments Building 101 1008 72. 정연희 — Seoul Gangseo-gu Gayang Gangnaru Hyundai Apartments Building 107 703

73. 정창희 — Seoul Jongno-gu Myeongnyun 2-ga 4 Anam Apartments Building 103 1605 74. 정호동 — Seoul Nowon-gu Wolgye 3-dong 13 Miryung Apartments Building 19 305 75. 조봉기 — Seoul Gangbuk-gu Suyu 4-dong 570-15 76. 조일호 — Seoul Eunpyeong-gu Susaek-dong 326-3 77. 조천휘 — Seoul Gangbuk-gu Suyu-dong 23-52 78. 진두생 — Seoul Songpa-gu Jamsil 5-dong Jugong Apartments Building 523 804 79. 최계락 — Seoul Seongbuk-gu Jangwi-dong 33-34 80. 최재익 — Seoul Jungnang-gu Sangbong 2-dong 129-56

81. 최홍우 — Seoul Seongdong-gu Hawangsimni-dong 990 Hanshin Muak Apartments Building 1 1401 82. 한명철 — Seoul Gangseo-gu Banghwa 1-dong 793 Hyundai Apartments Building 102 1101 83. 한명철 — Seoul Songpa-gu Sincheon-dong Clover Apartments Building 1 507 84. 한봉수 — Seoul Seocho-gu Seocho-dong 1617-37 85. 한응용 — Seoul Songpa-gu Songpa-dong 17-6 Miseong Apartments Building 5 707 86. 허명화 — Seoul Seocho-gu Jamwon-dong 73 Sinbanpo District 2 Apartments Building 101 507 87. 신나윤 — Gyeonggi Yongin City Guseong-eup Mabuk-ri Sanggeo Village Samsung Apartments Building 115 804 88. 이종현 — Gyeonggi Gwangmyeong City Haan 4-dong Jugong Apartments Building 1105 1103

89. 김순덕 — Gyeonggi Province Anyang City Manan-gu Anyang-dong 873-118 90. 박영신 — Gyeonggi Province Icheon City Gwango-dong 15-16 91. 김선미 — Seoul Eunpyeong-gu Daejo-dong 48-17 92. 김우진 — Seoul Guro-gu Gocheok 1-dong Hanhyo Apartments Building 3 606 93. 김정란 — Incheon Seo-gu Gajwa-dong 446-1 94. 박난숙 — Busan Saha-gu Gupyeong-dong 41-7 Hwasin Apartments Building 102 1802 95. 양회순 — Seoul Gangseo-gu Hwagok 6-dong 954-4 96. 이지연 — Busan Yeongdo-gu Dongsam 1-dong 227-399

97. 임원숙 — Seoul Seodaemun-gu Bugahyeon 2-dong 238-18 Floor 4 98. 최귀자 — Seoul Dongjak-gu Sadang 1-dong 432-32 99. 남택용 — Masan City Happo-gu Wanwol-dong Hwain Apartments Building 102 308 100. 이상현 — Busan Suyeong-gu Mangmi 1-dong Dongbang Royal Building 2 403 101. 이재범 — Busan Yeonje-gu Yeonsan 8-dong 1005-42 102. 천경미 — Busan Busanjin-gu Bujeon 2-dong 533-7 Ace Freetel 901 103. 김 정 — Seoul Gangdong-gu Amsa-dong Seonsa Hyundai Apartments Building 102 1306 104. 김상구 — Goyang City Deogyang-gu Hwajeong-dong 936 Eunbit Village 616-501

105. 김상우 — Chuncheon City Toegye-dong Green Town Apartments Building 102 1103 106. 유주현 — Anyang City Manan-gu Anyang-dong 349-33 107. 이동수 — Seoul Seodaemun-gu Hongeun 3-dong 189-5 108. 조시연 — Seongnam City Bundang-gu Gumi-dong 222 109. 지광환 — Seoul Yongsan-gu Ichon 1-dong 300-101 Hangang Apartments Building 28 102 110. 홍성도 — Seoul Gangnam-gu Irwonbon-dong 734 Sangnoksu Apartments Building 111 505 111. 강용호 — Seoul Yongsan-gu Hannam 2-dong 653-75 112. 강은숙 — Yongin City Yangji-myeon Pyeongchang-ri 432-13

113. 김명환 — Daegu Buk-gu Chimsan 1-dong 1551 114. 김미옥 — Suwon City Paldal-gu Godeung-dong 69-2 115. 김성길 — Busan Yeongdo-gu Dongsam-dong 265 Gyeongjeon Apartments Building 101 1411 116. 김시종 — Seoul Jongno-gu Hongpa-dong 2-3 Songhyeon Villa 502 17. 김종국 — Hwaseong City Taean-eup Banwol-ri Sinyeongdong Hyundai Apartments Building 201 1102 [Number printed as 17 in the source.] 118. 김진례 — Seoul Mapo-gu Seongsan-dong 25-3 119. 백석두 — Incheon Seo-gu Gajwa 4-dong mountain lot 199 120. 서원배 — Seoul Gwanak-gu Sillim 1-dong 1635-58

121. 성낙순 — Daegu Jung-gu Namsan-dong 735-80 122. 신현영 — Yongin City Guseong-eup Eonnam-ri Samsung Raemian Phase 2 Apartments Building 209 304 123. 양재형 — Incheon Ganghwa County Gilsang-myeon Onsu-ri 601 124. 유웅수 — Seoul Seongbuk-gu Gireum 2-dong 1171 125. 이관희 — Incheon Seo-gu Gajeong-dong 493-3 126. 이병규 — Incheon Seo-gu Gajwa 4-dong 325-6 127. 이영호 — Incheon Seo-gu Gajwa 2-dong 30-100 128. 이용운 — Seoul Jongno-gu Sungin-dong 72-95

129. 이창열 — Seoul Gangnam-gu Apgujeong-dong Hanyang Apartments Building 62 903 130. 이충원 — Seoul Eunpyeong-gu Daejo-dong 203-33 131. 장원진 — Seoul Gwangjin-gu Guui-dong Hyundai Plaza Apartments Building 11 2603 132. 최종출 — Seoul Seongdong-gu Haengdang 2-dong Sindonga Apartments Building 2 402 133. 최지영 — Suwon City Gwonseon-gu Gumun-dong Cheonggu Apartments Building 105 1503 134. 황성선 — Seoul Songpa-gu Pungnap 1-dong 147-4 Yucheon Villas Building 2 306 135. 강성권 — Seoul Eunpyeong-gu Eungam-dong 585-40 136. 고동철 — Anyang City Dongan-gu Hogye-dong 1098-2

137. 고형석 — Gwangju Nam-gu Yangnim-dong 66 Mudeung Park 101 138. 박종문 — Gwangju Nam-gu Bongseon-dong 1021-6 139. 서성근 — Seoul Seongdong-gu Hawangsimni-dong 990 Muak Hanshin Apartments Building 5 1304 140. 이병영 — Seoul Yongsan-gu Sinchang-dong 2-26 141. 이태섭 — Gyeonggi Hwaseong City Maesong-myeon Yamok-ri 511 142. 조만희 — Uijeongbu City Singok-dong 686 Samdo Apartments Building 104 1206 143. 한수남 — Daegu Suseong-gu Jisan-dong 1015-4 144. 강대현 — South Jeolla Hwasun County Dongbok-myeon Yeondun-ri District 2 357

145. 고동희 — Jeju Yeon-dong 313-73 146. 김경원 — Seoul Jongno-gu Sajik-dong mountain lot 1-1 147. 김영탁 — Seoul Gangnam-gu Apgujeong-dong Hyundai Apartments Building 103 403 148. 김영한 — Seoul Jung-gu Jangchung-dong 2-ga 186-151 149. 김완중 — Seoul Gangbuk-gu Suyu 3-dong 130-66 Suyu Villa 101 150. 김남숙 — Seoul Geumcheon-gu Gasan-dong 142-30 151. 김선옥 — Seoul Nowon-gu Gongneung 1-dong 5681-1 152. 박기서 — Suwon City Paldal-gu Hwaseo 2-dong 656 Hanjin Hyundai Apartments Building 107 1401

153. 박명철 — Daegu Nam-gu Bongdeok 3-dong Daedeok Apartments Building 105 307 154. 박영일 — Seoul Gangnam-gu Suseo-dong Samsung Apartments Building 105 1202 155. 박우순 — Busan Haeundae-gu Banyeo 1-dong Asia Apartments Building 112 704 156. 박정호 — Suwon City Jeongja-dong Baekseol Village Dongyang Express Apartments Building 552 406 157. 백낙승 — Chuncheon City Hupyeong 1-dong Hyundai Apartments Building 101 708 158. 서상수 — Seoul Yangcheon-gu Sinwol 6-dong 561-1 Haengbok Real Estate 159. 여영섭 — Bucheon City Wonmi-gu Sang-dong 395 Bandal Village Samik Apartments Building 1870 402 160. 이기태 — Seoul Jungnang-gu Myeonmok 6-dong 62-33

161. 이영인 — Gwangju Dong-gu Gyerim 1-dong 591-18 Rich Ville Unit 305 162. 이춘식 — Seoul Jung-gu Sindang-dong 844 Namsan Town Apartments Building 22 1404 163. 이한웅 — Goyang City Ilsan-gu Janghang-dong 875 Hosu Village LG Apartments Building 401 604 164. 정성옥 — Goyang City Ilsan-gu Daehwa-dong Jangseong Village Geonyeong Apartments Building 306 602 165. 정찬용 — Seoul Dongjak-gu Sadang 1-dong 419-107 166. 조길익 — Seoul Gwangjin-gu Jayang 2-dong 670 Hyundai Phase 3 Apartments Building 302 1908 167. 최종학 — Seoul Jongno-gu Jongno 6-ga Jongno Severance Clinic 168. 한명희 — Namyangju City Wabu-eup Dogok-ri 703

169. 김태보 — Jeju City Donam-dong 912-17

Appendix 2 List of intervenors [Personal names are retained in Korean. Addresses and numbering are reproduced as supplied; apparent source errors are not silently corrected.] 1. 임만수 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 10 2. 임재일 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 423-3 3. 윤수중 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 350-8 4. 임재길 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 27 5. 임재석 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 27 6. 임재운 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 19 7. 임학수 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 314 8. 홍재찬 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 121-5

9. 임헌왕 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 108-8 10. 김화자 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 20 11. 정순애 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 349 12. 최진자 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 87-3 13. 임금수 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 83-5 14. 이복희 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 349 15. 김청자 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 314 16. 임은수 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 86-8

17. 임은수 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 20 18. 임영철 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 16 19. 이일순 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 80-2 20. 진태선 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 95-4 21. 임헌인 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 349 22. 성옥기 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 349 23. 윤석진 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 102-2 24. 조만기 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 344

25. 김재규 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 86-5 26. 성영환 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 441-1 27. 김준철 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 350-5 28. 임헌석 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 53 29. 임정수 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 379-9 30. 임재홍 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 339 31. 임헌양 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 125 32. 강남훈 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 318-1

33. 임부임 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 357-4 34. 임만수 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 359-1 35. 임재수 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 83-6 36. 이계임 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 37. 임헌미 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 350 38. 윤석만 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 99-6 39. 장순임 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 80-1 40. 임재구 — South Chungcheong Yeongi County Nam-myeon Jinui-ri 99

41. 임재언 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 698 42. 임은수 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 698 43. 임영배 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 699 44. 임맹수 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri District 2 6613 45. 임영순 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri District 2 674 46. 임종수 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 601-2 47. 임천율 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 48. 임명재 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 623

49. 임중철 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 610 50. 임헌우 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 614-2 51. 임헌춘 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 572 52. 임춘성 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 7334 53. 임헌원 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 675 54. 임태순 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 698 55. 임근수 — South Chungcheong Yeongi County Nam-myeon Yanghwa 2-ri 705 56. 임백수 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri District 2 687

57. 임헌기 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri District 2 672 58. 임재석 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri District 2 676 59. 임헌각 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri District 2 695 60. 임의수 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri District 2 679 61. 임헌옥 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 554-4 62. 노수재 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 559 63. 임헌서 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 560-1 64. 최진섭 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 55-1

65. 임헌두 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 534 66. 정진석 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 554-3 67. 임종철 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 554-2 68. 임강근 — South Chungcheong Yeongi County Nam-myeon Yanghwa 1-ri 85 69. 임재산 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 24 70. 임하원 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 48 71. 임무철 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 88-9 72. 전성구 — South Chungcheong Yeongi County Nam-myeon Yanghwa-ri 87

73. 문명식 — South Chungcheong Yeongi County Nam-myeon Galun-ri 530-2 74. 임길수 — South Chungcheong Yeongi County Nam-myeon Galun 3-ri 551-4 75. 임빈수 — South Chungcheong Yeongi County Nam-myeon Galun-ri 558 76. 임양수 — South Chungcheong Yeongi County Nam-myeon Galun 3-ri 557-2 77. 양태문 — South Chungcheong Yeongi County Nam-myeon Galun-ri 429 78. 임재기 — South Chungcheong Yeongi County Nam-myeon Galun-ri 557-1 79. 정영식 — South Chungcheong Yeongi County Nam-myeon Galun-ri 433 80. 임재호 — South Chungcheong Yeongi County Nam-myeon Galun-ri 5254

81. 임정철 — South Chungcheong Yeongi County Nam-myeon Galun-ri 365-2 82. 양태일 — South Chungcheong Yeongi County Nam-myeon Galun-ri 429 83. 김시관 — South Chungcheong Yeongi County Nam-myeon Galun-ri 94 84. 김헌식 — South Chungcheong Yeongi County Nam-myeon Galun-ri 475-2 85. 윤정환 — South Chungcheong Yeongi County Nam-myeon Galun-ri 459 86. 이원호 — South Chungcheong Yeongi County Nam-myeon Galun-ri 486-2 87. 오광수 — South Chungcheong Yeongi County Nam-myeon Galun-ri 474 88. 김인식 — South Chungcheong Yeongi County Nam-myeon Galun-ri 99

89. 최원식 — South Chungcheong Yeongi County Nam-myeon Galun-ri 473 90. 임광수 — South Chungcheong Yeongi County Nam-myeon Galun-ri 32-4 91. 김상덕 — South Chungcheong Yeongi County Nam-myeon Galun-ri 337-5 92. 이종진 — South Chungcheong Yeongi County Nam-myeon Galun-ri 42 93. 임헌서 — South Chungcheong Yeongi County Nam-myeon Galun-ri 376 94. 임상철 — South Chungcheong Yeongi County Nam-myeon Galun-ri 44 95. 임결철 — South Chungcheong Yeongi County Nam-myeon Galun-ri 31-1 96. 곽동환 — South Chungcheong Yeongi County Nam-myeon Galun-ri 115

97. 김문순 — South Chungcheong Yeongi County Nam-myeon Galun-ri 69 98. 최혁수 — South Chungcheong Yeongi County Nam-myeon Galun-ri 206 99. 이관희 — South Chungcheong Yeongi County Nam-myeon Galun-ri 207 100. 임봉수 — South Chungcheong Yeongi County Nam-myeon Songdam-ri 440-1 101. 유상식 — South Chungcheong Yeongi County Nam-myeon Songdam-ri 420-6 102. 임재각 — South Chungcheong Yeongi County Nam-myeon Songdam-ri 418 103. 임재호 — South Chungcheong Yeongi County Nam-myeon Songdam-ri 439 104. 임재준 — South Chungcheong Yeongi County Nam-myeon Songdam-ri 416

105. 임헌만 — South Chungcheong Yeongi County Nam-myeon Songdam-ri 451-2 106. 임병달 — South Chungcheong Yeongi County Nam-myeon Songdam-ri 460-9 107. 임준웅 — South Chungcheong Yeongi County Nam-myeon Songdam-ri 450 108. 이명구 — South Chungcheong Yeongi County Nam-myeon Songdam-ri 501-1 109. 박헌근 — South Chungcheong Yeongi County Nam-myeon Songdam-ri 471 110. 임헌필 — South Chungcheong Yeongi County Nam-myeon Wolsan-ri 66 111. 강인식 — South Chungcheong Yeongi County Nam-myeon Wolsan-ri 145 112. 임방수 — South Chungcheong Yeongi County Nam-myeon Wolsan-ri 87

113. 김진수 — South Chungcheong Yeongi County Nam-myeon Wolsan-ri 66 114. 임헌교 — South Chungcheong Yeongi County Nam-myeon Wolsan-ri 67 115. 황달수 — South Chungcheong Yeongi County Nam-myeon Yeongi-ri 50-1 116. 임헌설 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 474 117. 임광수 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 422 118. 임헌욱 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 470-5 119. 임노설 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 574-1 120. 박순택 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 598-1

121. 임훈철 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 122. 임상수 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 123. 임헌곤 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 278-3 124. 강희완 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 432 125. 강인환 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 600-1 126. 임철수 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 576 127. 강희상 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 443 128. 임달수 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 470-4

129. 임광남 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 277-1 130. 임헌경 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 484-2 131. 강헌식 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 424 132. 강기식 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 283 133. 임헌덕 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 373-4 134. 임명수 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 379 135. 임헌태 — South Chungcheong Yeongi County Dong-myeon Yongho 3-ri 373-3 136. 강희문 — South Chungcheong Yeongi County Dong-myeon Yongho-ri District 2

137. 사남규 — South Chungcheong Yeongi County Dong-myeon Naepan District 2 544-5 138. 임혁수 — South Chungcheong Yeongi County Dong-myeon Yongho 2-ri 470 139. 임장철 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 574-2 140. 곽선용 — South Chungcheong Yeongi County Dong-myeon Yongho District 1 141. 오형세 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 586 142. 이병희 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 472 143. 장화순 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 501-2 144. 이순예 — South Chungcheong Yeongi County Dong-myeon Yongho-ri 483

145. 장충섭 — South Chungcheong Yeongi County Geumnam-myeon Daepyeong-ri 65-16 146. 임동수 — South Chungcheong Yeongi County Geumnam-myeon Daepyeong-ri 63-12 147. 강기문 — South Chungcheong Yeongi County Geumnam-myeon Daepyeong-ri 240 148. 오공식 — South Chungcheong Yeongi County Geumnam-myeon Daepyeong-ri 265-7 149. 김명호 — South Chungcheong Yeongi County Geumnam-myeon Daepyeong-ri 265-13 150. 현정호 — South Chungcheong Yeongi County Geumnam-myeon Daepyeong-ri 123-30 151. 진응식 — South Chungcheong Yeongi County Geumnam-myeon Daepyeong-ri 240-16 152. 이덕재 — South Chungcheong Yeongi County Geumnam-myeon Daepyeong-ri 168-44

153. 김학용 — South Chungcheong Yeongi County Geumnam-myeon Daepyeong-ri 65-23 154. 노재영 — South Chungcheong Yeongi County Geumnam-myeon Daepyeong-ri 65-14 155. 허신무 — South Chungcheong Yeongi County Geumnam-myeon Bonggi-ri 383 156. 허동영 — South Chungcheong Yeongi County Geumnam-myeon Bonggi-ri 393 157. 허문영 — South Chungcheong Yeongi County Geumnam-myeon Bonggi-ri 384 158. 허삼영 — South Chungcheong Yeongi County Geumnam-myeon Bonggi-ri 385 159. 김재성 — South Chungcheong Yeongi County Geumnam-myeon Bonggi-ri 452 160. 김재철 — South Chungcheong Yeongi County Geumnam-myeon Bonggi-ri 453

161. 김기봉 — South Chungcheong Yeongi County Geumnam-myeon Bonggi-ri 442 162. 허인영 — South Chungcheong Yeongi County Geumnam-myeon Bonggi-ri 326 163. 김재덕 — South Chungcheong Yeongi County Geumnam-myeon Bonggi-ri 402 164. 허무준 — South Chungcheong Yeongi County Geumnam-myeon Bonggi-ri 404 165. 진영섭 — South Chungcheong Yeongi County Geumnam-myeon Bangok-ri 256 166. 진병철 — South Chungcheong Yeongi County Geumnam-myeon Bangok-ri 368 167. 김상규 — South Chungcheong Yeongi County Geumnam-myeon Bangok-ri 220 168. 진병목 — South Chungcheong Yeongi County Geumnam-myeon Bangok-ri 245

169. 이무구 — South Chungcheong Yeongi County Geumnam-myeon Bangok-ri 211 170. 진월식 — South Chungcheong Yeongi County Geumnam-myeon Bangok-ri 250 171. 진병익 — South Chungcheong Yeongi County Geumnam-myeon Bangok-ri 301 172. 진병기 — South Chungcheong Yeongi County Geumnam-myeon Bangok-ri 276 173. 이순철 — South Chungcheong Yeongi County Geumnam-myeon Bangok-ri 352 174. 김태식 — South Chungcheong Yeongi County Geumnam-myeon Bangok-ri 295-1 175. 김용태 — South Chungcheong Yeongi County Geumnam-myeon Seokgyo-ri 430 176. 심규만 — South Chungcheong Yeongi County Geumnam-myeon Seokgyo-ri 433

177. 이국한 — South Chungcheong Yeongi County Geumnam-myeon Seokgyo-ri 490 178. 이순한 — South Chungcheong Yeongi County Geumnam-myeon Seokgyo-ri 443 179. 이옥한 — South Chungcheong Yeongi County Geumnam-myeon Seokgyo-ri 479 180. 이종영 — South Chungcheong Yeongi County Geumnam-myeon Seokgyo-ri 440 181. 이종희 — South Chungcheong Yeongi County Geumnam-myeon Seokgyo-ri 426 182. 홍귀자 — South Chungcheong Yeongi County Geumnam-myeon Seokgyo-ri 491 183. 이승한 — South Chungcheong Yeongi County Geumnam-myeon Seokgyo-ri 474 184. 이종행 — South Chungcheong Yeongi County Geumnam-myeon Seokgyo-ri 500

185. 김학재 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 87 186. 최병인 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 59-1 187. 안상열 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 28 188. 박수실 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 77 189. 이정윤 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 91 190. 이정진 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 21 191. 최태복 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 90 192. 김원태 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 14

193. 김권중 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 462-1 194. 신희영 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 195. 김규엽 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 147 196. 윤갑중 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 118 197. 윤기한 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 107-6 198. 신언흥 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 132 199. 신석균 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 134 200. 신언옥 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 138

201. 신언복 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 164-2 202. 신부균 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 157-1 203. 신도균 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 164-1 204. 홍문의 — South Chungcheong Yeongi County Geumnam-myeon Seoksam-ri 165-1 205. 임헌방 — Gongju City Janggi-myeon Dangam-ri District 2 206. 이충근 — Gongju City Janggi-myeon Dangam-ri District 2 207. 류근홍 — Gongju City Janggi-myeon Dangam-ri District 2 208. 양근배 — Gongju City Janggi-myeon Dangam-ri 228

209. 김행일 — Gongju City Janggi-myeon Dangam-ri 228 210. 이중의 — Gongju City Janggi-myeon Dangam-ri 211. 임헌권 — Gongju City Janggi-myeon Dangam-ri 212. 임재용 — Gongju City Janggi-myeon Dangam-ri 213. 신호식 — Gongju City Janggi-myeon Dangam-ri 214. 임헌성 — Gongju City Janggi-myeon Dangam-ri 215. 이정섭 — Gongju City Janggi-myeon Dangam-ri 216. 한기순 — Gongju City Janggi-myeon Dangam-ri

217. 김광수 — Gongju City Janggi-myeon Dangam-ri 218. 이병진 — Gongju City Janggi-myeon Dangam-ri 158 219. 이회운 — Gongju City Janggi-myeon Dangam-ri 114 220. 이금수 — Gongju City Janggi-myeon Dangam-ri 205-1 221. 정계순 — Gongju City Janggi-myeon Dangam-ri 203 222. 정옥순 — Gongju City Janggi-myeon Dangam-ri 205-2 223. 이상복 — Gongju City Janggi-myeon Dangam-ri 208-4 224. 양재도 — Gongju City Janggi-myeon Dangam-ri

225. 이용경 — Gyeongju City Dongcheon-dong 783-6 226. 홍정흠 — Gyeongju City Hyeongok-myeon Mugwa-ri 270-2 227. 박윤득 — Gyeongju City Hyeongok-myeon Mugwa-ri 270-2 228. 이재익 — Gyeongju City Sajeong-dong 423 229. 김형수 — Gyeongju City Inwang-dong 653-3 230. 김환영 — Gyeongju City Hwangseong-dong 338-3 Uju Town Building 205 307

Appendix 3 Special Act on Measures for the Construction of a New Administrative Capital [Enacted January 16, 2004, Act No. 7062] Chapter I. General provisions Article 1 (Purpose) The purpose of this Act is to contribute to balanced national development and stronger national competitiveness by prescribing methods and procedures for constructing a new administrative capital, in order to remedy the adverse effects of the concentration of core national functions in the capital region and respond to the simultaneous trends of globalization and localization.

Article 2 (Definitions) The terms used in this Act mean the following: 1. “New administrative capital” means an area newly constructed under this Act as a capital performing the state’s core political and administrative functions, designated by statute under Article 4 around the proposed site and surrounding area defined in items 2 and 3. 2. “Proposed site” means an area designated and publicly notified under Articles 12 and 14 for relocation of major constitutional organs and central administrative agencies (hereafter “major state institutions”) and the associated urban development. 3. “Surrounding area” means an area adjoining the proposed site that may be affected by its development, is considered to require planned management, and is designated and publicly notified under Articles 12 and 14.

Article 3 (Responsibilities of the State and local governments) (1) In constructing the new administrative capital, the State shall endeavor to contribute to national unity by broadly gathering public opinion and shall ensure that construction promotes balanced national development and competitiveness. (2) Local governments shall cooperate with the procedures and measures implemented under this Act for construction of the new administrative capital. Article 4 (Name and other matters) The name, status, administrative boundaries, and other matters concerning the new administrative capital shall be prescribed by a separate statute. Article 5 (Relationship to other plans) The basic plan, metropolitan urban plan for the new administrative capital, and development plan under Articles 7, 17, and 19 shall prevail over plans under other statutes.

This shall not apply, however, to the comprehensive national territorial plan under Article 6(2)1 of the Framework Act on the National Territory or to military plans. Chapter II. Formulation of the Basic Plan for Construction of the New Administrative Capital and Related Matters Article 6 (Relocation plan for major state institutions) (1) The Committee for the Construction of a New Administrative Capital established under Article 27 (“the Committee”) shall prepare a plan to relocate major state institutions to the new administrative capital (“relocation plan”) and obtain presidential approval. (2) The plan shall include: 1. The major state institutions to be relocated; 2. The methods and timing of relocation; 3. Estimated relocation costs; 4. Other matters the Committee considers necessary for smooth relocation. (3) Before preparing the plan, the Committee shall hold a public hearing to hear citizens and relevant experts and consult the heads of the major state institutions concerned.

Matters necessary for holding the public hearing shall be prescribed by Presidential Decree. (4) The part of the relocation plan concerning constitutional organs outside the Government shall receive National Assembly consent before presidential approval under paragraph (1). (5) Upon approval under paragraph (1), the Committee shall publicly notify the plan as prescribed by Presidential Decree. (6) Paragraphs (1) and (3)–(5) apply mutatis mutandis to amendments to the plan, except minor changes prescribed by Presidential Decree. Article 7 (Formulation of the Basic Construction Plan) (1) Based on the relocation plan and related materials, the Committee shall prepare a basic plan for constructing the new administrative capital (“basic plan”) and obtain presidential approval.

(2) The basic plan shall set the general direction for: 1. The city’s scale, including population and area; 2. Its form, including concentrated or dispersed, independent or dependent development; 3. The new administrative capital’s symbolism and image; 4. Other matters prescribed by Presidential Decree. (3) Before preparing the plan, the Committee shall hold a public hearing to hear citizens and relevant experts and consult the heads of the major state institutions concerned. Matters necessary for the hearing shall be prescribed by Presidential Decree. (4) Upon approval under paragraph (1), the Committee shall publicly notify the plan as prescribed by Presidential Decree. (5) Paragraphs (1), (3), and (4) apply mutatis mutandis to amendments.

This does not apply to minor changes prescribed by Presidential Decree. Article 8 (Eligible locations for the proposed site and surrounding area) The proposed site and surrounding area (collectively, “designated areas”) shall be selected within Daejeon Metropolitan City, North Chungcheong Province, and South Chungcheong Province (collectively, “Chungcheong”). Article 9 (Basic surveys for designation) (1) To designate these areas, the Committee shall survey Chungcheong’s human and natural environment, land use, and related conditions as prescribed by Presidential Decree. Existing surveys under other statutes may be used. (2) Where necessary for efficient surveying, the Committee may commission relevant experts, institutions, or organizations to conduct surveys under paragraph (1).

Article 10 (Special provisions restricting development and building permits) (1) During surveys for designation, the Committee may request the Minister of Construction and Transportation to restrict development permits under Article 56 of the National Land Planning and Utilization Act or building permits under Article 8 of the Building Act in areas at risk of disorderly development and real-estate speculation. (2) Upon such a request, the Minister may restrict development permits under Article 56 of the National Land Planning and Utilization Act or building permits under Article 8 of the Building Act, notwithstanding Article 63 of the former Act and Article 12 of the latter.

(3) When imposing restrictions under paragraph (2), the Minister shall publicly notify the restricted area, the restrictions, their duration, and related matters as prescribed by Presidential Decree. (4) Where the Committee considers that the purpose of a restriction notified under paragraph (3) has ceased or that its area, substance, duration, or other aspects require alteration, it may request the Minister to lift or amend it. Paragraph (3) applies mutatis mutandis to lifting or amending restrictions. Article 11 (Requests to designate land-transaction permission zones and related areas) (1) During designation surveys, the Committee may request heads of the relevant administrative agencies to designate areas at risk of real-estate speculation as one of the following zones, areas, or districts:

1. A land-transaction contract permission zone under Article 117(1) of the National Land Planning and Utilization Act; 2. An area under Article 96(1)6-2 of the Income Tax Act; 3. An overheated speculation district under Article 41 of the Housing Act. (2) If the Committee considers that the purpose of a designation requested under paragraph (1) has ceased or that the zone, area, or district should be reduced, it may request the relevant agency head to cancel or reduce it. (3) Notwithstanding Article 118(2) of the National Land Planning and Utilization Act, the land-area thresholds by use category below which permission under Article 118(1) is unnecessary shall be prescribed by Presidential Decree for areas selected by the Committee in accordance with Presidential Decree within paragraph (1)1 permission zones in Chungcheong, including zones designated without a paragraph (1) request.

(4) When determining the territorial scope to which the land-area thresholds exempting transactions from permission under paragraph (3) apply, the Committee shall publicly notify it as prescribed by Presidential Decree. Chapter III. Designation and Management of the Proposed Site and Surrounding Area Article 12 (Designation and related matters) (1) The Committee shall designate the areas with presidential approval. (2) Before designation, it shall hold a public hearing to hear residents, relevant experts, and others; obtain the views of the relevant local-government heads; and consult the heads of the major state institutions concerned. Matters necessary for the hearing shall be prescribed by Presidential Decree.

(3) Paragraphs (1) and (2) apply mutatis mutandis to changes in the designated areas, except minor changes prescribed by Presidential Decree. (4) Articles 8 and 9 of the National Land Planning and Utilization Act shall not apply to designation or amendment under paragraphs (1) and (3). (5) Designations shall be deemed lifted at the following times: 1. For the proposed site, the day after the public announcement of construction completion under Article 26(6); 2. For the surrounding area, the day after the Minister of Construction and Transportation determines and publicly notifies a new urban management plan for that area as prescribed by Presidential Decree.

If no new urban management plan is determined and notified within the period prescribed by Presidential Decree, the surrounding-area designation shall be deemed lifted on the day after that period expires. Article 13 (Designation criteria) Based on the Article 9 surveys, the Committee shall select designated areas consistent with the basic plan under Article 7, choosing areas with favorable assessments of their effect on balanced territorial development, environmental suitability, economic feasibility, and related considerations. Article 14 (Public notification of designation and related matters) (1) When designating or changing an area, the Committee shall publicly notify the following matters as prescribed by Presidential Decree and send copies of the relevant documents to the local-government heads concerned.

The local-government heads receiving the documents shall make them available for public inspection. 1. Matters listed in Article 19(2)1–4; 2. Particulars of land to be expropriated or used; 3. Other matters prescribed by Presidential Decree. (2) When sending copies under the first sentence of paragraph (1), the Committee shall also send documents necessary to prepare topographic maps under Article 32 of the National Land Planning and Utilization Act for matters deemed determined, designated, and notified under Article 15(1). Article 15 (Effects of designation) (1) An area designated and notified as a proposed site shall be deemed determined, designated, and notified as an urban area under Article 6 of the National Land Planning and Utilization Act, a Class I district-unit planning zone under Article 51 of that Act, and an urban development zone under Article 3 of the Urban Development Act. Upon designation and notification of the designated areas, an implementer appointed under Article 18(1) shall be deemed an urban development project implementer appointed under Article 11 of the Urban Development Act.

(2) Upon designation and notification, restrictions on development and building permits under Article 10 shall be deemed lifted. (3) Where zones, areas, districts, or similar divisions within the designated areas and their project plans have already been designated, determined, notified, announced, or approved under other statutes, the responsible agency heads shall consult the Committee, as prescribed by Presidential Decree, on retaining those divisions and implementing the plans. (4) Where a land-transaction contract permission zone under Article 117(1) of the National Land Planning and Utilization Act has been designated within the proposed site, Article 118 of that Act shall not apply to land-transaction contracts there concluded by the new-administrative-capital construction project implementer appointed under Article 18(1) (“project implementer”).

(5) A local-government head having jurisdiction over a designated area shall consult the Committee beforehand when performing duties prescribed by Presidential Decree within the area, including building permits and urban-planning decisions. Article 16 (Restrictions on activities in designated areas) (1) Anyone wishing to undertake activities prescribed by Presidential Decree within the proposed site—including changing the form or character of land, constructing buildings, installing structures, or extracting earth, stone, sand, or gravel—shall obtain permission from the competent metropolitan mayor, city mayor, or county head. (2) Restrictions in urbanization control zones under Article 81 of the National Land Planning and Utilization Act apply mutatis mutandis to the surrounding area. Restrictions may, however, be relaxed as prescribed by Presidential Decree in areas specified by that decree, including clustered settlements.

(3) A person who, when designation and notification occur, has already obtained legally required permits or approvals for activities under paragraph (1), including cases where none is required, and begun construction or a project may continue after reporting to the competent metropolitan mayor, city mayor, or county head as prescribed by Presidential Decree. (4) Except as otherwise provided here, Articles 57–60 and 62 of the National Land Planning and Utilization Act apply mutatis mutandis to permission under paragraphs (1) and (2). For paragraph (2), “permission” means permission under Article 81(2) of that Act as applied mutatis mutandis by that paragraph; the same definition applies throughout this article.

(5) Permission granted under paragraphs (1) and (2) shall be deemed development permission under Article 56 of the National Land Planning and Utilization Act. Article 17 (Metropolitan urban plan for the new administrative capital) (1) To link the spatial structure and functions of the designated areas with neighboring areas, conserve the environment, and systematically improve metropolitan facilities, the Committee may designate the designated areas and all or part of adjoining metropolitan cities, cities, or counties as a metropolitan planning region for the new administrative capital, as prescribed by Presidential Decree. (2) The Committee shall prepare or amend a metropolitan urban plan for the region designated under paragraph (1), as prescribed by Presidential Decree.

(3) Articles 12, 14, and 15 of the National Land Planning and Utilization Act apply mutatis mutandis to preparation and amendment of the plan under paragraph (2), except minor changes prescribed by Presidential Decree. (4) The plan established under paragraphs (2) and (3) shall prevail over existing metropolitan urban plans and basic urban plans within the region designated under paragraph (1). The relevant local-government heads shall amend existing urban plans to conform to it. Chapter IV. Construction Projects for the New Administrative Capital and Related Matters Article 18 (Designation of project implementers) (1) The Committee shall designate a project implementer from among government-invested institutions under Article 2 of the Framework Act on the Management of Government-Invested Institutions.

(2) Where necessary for efficient implementation, the project implementer may, with Committee approval and as prescribed by Presidential Decree, have private enterprises carry out part of the construction project on its behalf. Article 19 (Formulation of the development plan) (1) The Committee shall prepare a plan (“development plan”) for the new-administrative-capital construction project, meaning development of the proposed site; the same definition applies below. (2) The development plan shall include: 1. The project’s name; 2. Its purpose; 3. Its implementer; 4. The proposed site’s location and area; 5. The implementation period; 6. A phased implementation plan; 7. A plan to accommodate the major institutions to be relocated; 8. A population accommodation plan; 9. A land-use plan; 10. A traffic management plan; 11. An environmental conservation plan; 12. Plans for educational, cultural, health-care, and welfare facilities; 13. Plans for major infrastructure, including roads, water supply, and sewerage; 14. A financing plan; 15. Where infrastructure must be installed outside the proposed site, a plan allocating its costs; 16. Other matters prescribed by Presidential Decree. (3) The development plan shall conform to the basic plan under Article 7 and the metropolitan urban plan under Article 17.

(4) Before preparing the development plan under paragraph (1), the Committee shall hold a public hearing for residents, relevant experts, and others, obtain the views of the relevant local-government heads, and consult the heads of the major state institutions concerned. Matters necessary for the hearing shall be prescribed by Presidential Decree. (5) Upon preparing the plan, the Committee shall publicly notify it as prescribed by Presidential Decree and send copies of the relevant documents to the local-government heads concerned, who shall make them available for public inspection. (6) Paragraphs (3)–(5) apply mutatis mutandis to amendments.

This does not apply to minor changes prescribed by Presidential Decree. (7) Upon public notification under paragraph (5), an urban development plan under Article 4 of the Urban Development Act shall be deemed established. (8) Consultation on preliminary environmental review under Article 25 of the Framework Act on Environmental Policy shall take place before notification under paragraph (5). The consulting authority shall be the Minister of Environment. Article 20 (Approval of the implementation plan) (1) When the development plan has been prepared and notified under Article 19, the project implementer shall prepare a construction implementation plan (“implementation plan”), including design documents, a financing plan, and other matters prescribed by Presidential Decree, and obtain approval from the Minister of Construction and Transportation.

Before approval, the Minister shall obtain the Committee’s deliberation and resolution. (2) The implementation plan under paragraph (1) shall include a Class I district-unit plan prepared under Article 52 of the National Land Planning and Utilization Act. (3) It shall reflect assessment results under the Act on Assessment of Impacts of Works on the Environment, Transportation, Disasters, etc. (4) Upon approving the plan, the Minister shall publicly notify it as prescribed by Presidential Decree and send copies of relevant documents to the local-government heads concerned, who shall make them available for public inspection.

(5) For matters notified under the first sentence of paragraph (4) that are deemed determined and notified as an urban management plan under Article 21(1)8, public notification of topographic maps under Article 32 of the National Land Planning and Utilization Act may occur within the construction implementation period under Article 19(2)5, notwithstanding Article 33 of that Act. (6) Paragraphs (1) and (3)–(5) apply mutatis mutandis to amendments of approved implementation plans, except minor changes prescribed by Presidential Decree. (7) Articles 9 and 59 of the National Land Planning and Utilization Act shall not apply to approval or amended approval under paragraphs (1) and (6).

Article 21 (Deemed related approvals and permits) (1) Approval of the implementation plan under Article 20 shall be deemed receipt of the following approvals, permits, authorizations, determinations, reports, designations, licenses, consultations, releases, examinations, and other administrative actions (“approvals and permits”). Public notification of that approval shall be deemed public notification or announcement of approvals and permits under the following statutes: 1. Building permits under Article 8, building reports under Article 9, changes to permitted or reported matters under Article 10, and permits or reports for temporary buildings under Article 15 of the Building Act; 2. Aggregate extraction permits under Article 22 of the Aggregate Extraction Act; 3. Permission to occupy or use public waters under Article 5, consultation or approval under Article 6, and approval or reporting of implementation plans under Article 8 of the Public Waters Management Act; 4. Public-water reclamation licenses under Article 9, approval of implementation plans under Article 15, and consultation or approval under Article 38 of the Public Waters Reclamation Act; 5. Designation of tourist areas under Article 50, approval of development plans under Article 52, and permission to implement development projects under Article 53 of the Tourism Promotion Act;

6. Refusal to establish mining rights under Article 29, and cancellation of mining rights or reduction of mining areas under Article 39 of the Mining Industry Act; 7. Permission to use and derive income from administrative and conservation property under Article 24 of the State Property Act; 8. Determination of urban management plans under Article 30, development permission under Article 56, designation of urban-planning-facility project implementers under Article 86, and approval of implementation plans under Article 88 of the National Land Planning and Utilization Act; 9. Permission to enter protected zones or military facilities under Article 7 and consultation concerning matters requiring administrative permission under Article 10 of the Military Installations Protection Act; 10. Release of dairy farming districts under Article 4 of the Dairy Industry Promotion Act;

11. Approval for using agricultural infrastructure for other purposes under Article 20 of the Rearrangement of Agricultural and Fishing Villages Act; 12. Change or release of agricultural promotion areas under Article 33(1), permission or consultation for farmland conversion under Article 36, reporting of conversion under Article 37, permission or consultation for temporary use for other purposes under Article 38, and approval of changes of use under Article 42 of the Farmland Act; 13. Permission or reporting for installation of emission facilities under Article 10 of the Clean Air Conservation Act, Article 10 of the Water Quality Conservation Act, and Article 9 of the Noise and Vibration Control Act; 14. Consultation with or approval by the road management authority under Article 8 of the Road Act, limited to announcement of route recognition under Article 19, determination of road zones under Article 25, permission for road works by persons other than the management authority under Article 34, and permission to occupy roads under Article 40 of that Act; 15. Approval of implementation plans under Article 17 of the Urban Development Act;

16. Permission to establish private roads under Article 4 of the Private Road Act; 17. Permission for tree felling and related activities under Article 14 and release of erosion-control area designations under Article 20 of the Erosion Control Work Act; 18. Designation of industrial-complex development project implementers under Article 16 and approval of industrial-complex development implementation plans under Articles 17 and 18 of the Industrial Sites and Development Act; 19. Change or release of conservation mountainous districts under Article 6, release of mountainous-district conversion restriction areas under Article 11, permission for conversion under Article 14, and reporting of conversion under Article 15 of the Mountainous Districts Management Act; 20. Permission for activities in protected forests under Article 62 and permission for felling standing timber and related activities under Article 90(1) of the Forestry Act;

21. Permission to undertake small-stream works under Article 10 and permission to occupy small streams under Article 14 of the Small River Maintenance Act; 22. Designation or alteration of water-source protection areas under Article 5, authorization of general waterworks businesses under Article 12(1), authorization of industrial waterworks businesses under Article 33-2, authorization of private water supply under Article 36, and authorization to install private industrial waterworks under Article 38 of the Water Supply and Waterworks Installation Act; 23. Consultation on energy-use plans under Article 8 of the Energy Use Rationalization Act; 24. Reporting of sewage treatment facility installation under Article 9(2) and reporting of separate septic tank installation under Article 10(2) of the Act on the Treatment of Sewage, Excreta and Livestock Wastewater; 25. Designation of distribution complexes under Article 5 and approval of distribution-complex development implementation plans under Article 11 of the Distribution Complex Development Promotion Act;

26. Permission to relocate graves without relatives under Article 23(1) of the Act on Funeral Services, etc.; 27. Approval or reporting of construction plans for private-use electrical installations under Article 62 of the Electric Utility Act; 28. Permission to use and derive income from administrative and conservation property under the proviso to Article 82(1) of the Local Finance Act; 29. Reporting the commencement, alteration, or completion of projects under Article 27 of the Cadastral Act; 30. Consultation on the feasibility of integrated energy supply under Article 4 of the Integrated Energy Supply Act;

31. Approval of business plans under Article 12 of the Installation and Utilization of Sports Facilities Act; 32. Permission or consultation for grassland conversion under Article 23 of the Grassland Act; 33. Examination of the use of survey results under Article 25 of the Survey Act; 34. Approval or reporting of waste-treatment facility installation under Article 30 of the Wastes Control Act; 35. Consultation or approval for sewerage projects under Article 3, permission for works by persons other than the managing authority under Article 13, and occupancy permission under Article 20 of the Sewerage Act;

36. Permission for river works and approval of their implementation plans under Article 30, and permission for river occupancy and related activities under Article 33 of the River Act; 37. Preparation of intelligent transport system implementation plans under Article 13 and preparation or approval of execution plans under Article 15 of the Transportation System Efficiency Act; 38. Permission under Article 16(1) of this Act.

(2) To obtain deemed approvals and permits under paragraph (1), the project implementer shall submit the documents required by the relevant statutes together with its application for implementation-plan approval.

(3) If an implementation plan contains any matter listed in paragraph (1), the Minister of Construction and Transportation shall consult the relevant administrative agency head before approval. The agency head shall submit an opinion within 30 days of the request and shall not agree to matters contrary to the statutory criteria governing the approvals and permits. (4) Where approvals and permits under other statutes are deemed granted under paragraph (1), license taxes, fees, usage charges, and similar amounts imposed for them under relevant statutes or metropolitan-city or provincial ordinances shall be waived. Article 22 (Installation of infrastructure and related matters) (1) Article 23 of the Housing Act applies mutatis mutandis to installation of electricity, telecommunications, gas, and district-heating facilities and reimbursement of their costs.

(2) The State shall give priority support to installation of roads, water supply, sewerage, and other infrastructure and ancillary facilities prescribed by Presidential Decree that are necessary for the designated areas. The scope, beneficiaries, and related aspects of support shall first undergo Committee deliberation and resolution. (3) Local governments shall give priority support to infrastructure outside the designated areas to ensure that the new administrative capital functions smoothly. Article 23 (Expropriation of land and related property) (1) Where necessary to implement the construction project within the proposed site, the project implementer may expropriate or use land, objects, or rights under Article 3 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (“land and other property”).

(2) Designation and public notification of the designated areas shall be deemed project recognition and notification under Articles 20(1) and 22 of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects. Notwithstanding Articles 23(1) and 28(1) of that Act, an adjudication application may be filed within the construction implementation period under Article 19(2)5 of this Act. (3) The Central Land Expropriation Committee shall have jurisdiction over adjudication of expropriation or use under paragraph (1). (4) Except as specially provided here, the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects applies mutatis mutandis to such expropriation or use.

Article 24 (Plan for supply of developed land) (1) Before supplying land developed through the construction project (“developed land”), the project implementer shall prepare a supply plan and obtain approval from the Minister of Construction and Transportation. The same applies to amendments. The Minister shall obtain Committee deliberation and resolution before approval. (2) The contents of the supply plan, supply procedures and criteria, price-determination methods, and other necessary matters shall be prescribed by Presidential Decree. Article 25 (Advance payments) (1) The project implementer may receive all or part of the price in advance from persons seeking developed land, as prescribed by Presidential Decree.

(2) Before receiving all or part of the price in advance under paragraph (1), the project implementer shall obtain approval from the Minister of Construction and Transportation. Article 26 (Completion inspection) (1) Upon completing all or part of the construction project, the project implementer shall without delay undergo the Minister’s completion inspection. (2) In an inspection under paragraph (1), where the Minister has consulted relevant agency heads under paragraph (4) on completion inspections, completion approvals, or similar procedures associated with approvals and permits deemed granted under Article 21, those completion procedures shall be deemed fulfilled. (3) To obtain such treatment under paragraph (2), the project implementer shall submit the documents required by the relevant statutes together with its completion-inspection application under paragraph (1).

(4) Where a completion inspection under paragraph (1) includes matters requiring completion inspection, approval, or similar procedures associated with approvals and permits deemed granted under Article 21, the Minister shall consult the relevant agency heads beforehand. (5) After inspecting under paragraph (1), the Minister shall notify the Committee and relevant agency heads of the results. (6) If inspection establishes that the development project was completed according to the implementation plan, the Minister shall issue a completion-inspection certificate to the implementer and announce completion as prescribed by Presidential Decree. Otherwise, the Minister shall promptly order corrective construction or other necessary measures.

(7) The head of the local government having jurisdiction over an area where completion has been announced under paragraph (6) shall manage that area according to the Class I district-unit plan included in the implementation plan notified under Article 20. Chapter V. Implementation Bodies Article 27 (Establishment of the Committee) The Committee for the Construction of a New Administrative Capital shall be established under the President to promote construction efficiently. Article 28 (Matters for Committee deliberation and resolution) The Committee shall deliberate and resolve on: 1. Relocation plans for major state institutions under Article 6; 2. The basic construction plan under Article 7; 3. Designation of areas under Article 12; 4. The metropolitan urban plan under Article 17; 5. Designation of project implementers and related matters under Article 18; 6. Development plans under Article 19; 7. Implementation plans under Article 20; 8. Support for infrastructure installation under Article 22(2); 9. Developed-land supply plans under Article 24; 10. Important matters concerning management and operation of the special construction account under Article 39; 11. Other matters this Act subjects to Committee deliberation and resolution, and matters it considers necessary for smooth construction. Article 29 (Composition of the Committee) (1) The Committee shall consist of no more than 30 members, including two chairpersons.

(2) Its members shall be: 1. The Prime Minister; Ministers of Finance and Economy, Education and Human Resources Development, National Defense, Government Administration and Home Affairs, Culture and Tourism, Agriculture and Forestry, Commerce, Industry and Energy, Environment, Construction and Transportation, and Planning and Budget; 2. The Secretary-General of the National Assembly and the Minister of National Court Administration; 3. Persons with extensive knowledge and experience relevant to construction, commissioned by the President upon the Prime Minister’s recommendation. (3) The chairpersons shall be the Prime Minister and a person commissioned by the President from among members under paragraph (2)3. (4) The chairpersons may invite heads of relevant institutions and local governments and others concerned with agenda items to attend and speak. (5) Members under paragraph (2)3 shall serve two-year terms and may be recommissioned.

(6) The Committee shall have one secretary: the head of the Construction Promotion Group under Article 34. Article 30 (Chairpersons) (1) Each chairperson represents the Committee and directs its affairs. (2) If both chairpersons are unavoidably unable to perform their duties, a member designated in advance by the Prime Minister as chairperson shall act in their place. Article 31 (Subcommittees) (1) Subcommittees may be established to handle efficiently the following Committee business: 1. Minor changes to relocation plans; 2. Minor changes to the basic plan; 3. Minor changes to designated areas; 4. Minor changes to the metropolitan urban plan; 5. Minor changes to development plans; 6. Developed-land supply plans; 7. Matters delegated by the Committee. (2) Subcommittee deliberations and resolutions on these matters shall be deemed those of the Committee.

For paragraph (1)7, this applies only where the Committee decides to give the subcommittee’s deliberations and resolutions that effect. (3) A subcommittee shall consist of five members. Necessary operational matters shall be prescribed by Presidential Decree. Article 32 (Meetings and voting requirements) Committee resolutions require approval by a majority of its total membership; subcommittee resolutions require approval by all members. Article 33 (Advisory Committee) (1) An advisory committee of no more than 100 advisers may be established to advise on matters within the Committee’s authority. (2) The Committee shall determine necessary matters concerning its organization and operation. Article 34 (Establishment of the Construction Promotion Group) (1) A New Administrative Capital Construction Promotion Group (“Promotion Group”) shall be established within the Committee to process its business efficiently.

(2) The Promotion Group shall have one head, designated by the President from among political appointees in public service. (3) Under the chairpersons’ direction, the head shall administer Committee business and direct and supervise staff. (4) Where necessary for the Group’s work, the chairpersons may request personnel, materials, advice, and other support from heads of relevant administrative agencies, institutions, and organizations. Article 35 (Prohibition on disclosure of secrets) Committee members, advisory committee members, and Committee employees, including former holders of those positions, and persons seconded to perform Committee work, whether currently or formerly, shall not disclose secrets learned in the course of their duties. Article 36 (Organization and operation) Matters necessary for the organization and operation of the Committee, subcommittees, and Promotion Group not prescribed by this Act shall be prescribed by Presidential Decree.

Article 37 (Gathering public opinion) Where necessary for its work, the Committee may gather public opinion through public hearings or other means. Article 38 (Consultation with the Central Urban Planning Committee) The Committee may consult the Central Urban Planning Committee under Article 106 of the National Land Planning and Utilization Act on: 1. Formulation of the metropolitan urban plan under Article 17; 2. Formulation of development plans under Article 19. Chapter VI. Special Account for Construction of the New Administrative Capital Article 39 (Establishment, management, and operation) (1) A special account for construction of the new administrative capital (“the Account”) shall be established to provide financial support for construction-related projects.

(2) The Account shall be managed and operated by the Minister of Construction and Transportation. (3) In managing and operating it, the Minister shall obtain prior Committee deliberation and resolution on important matters prescribed by Presidential Decree. Article 40 (Revenue and expenditure) (1) The Account’s revenue shall consist of: 1. Proceeds from sale, usage charges, recovered lease deposits, and other income from property of major state institutions relocating under the relocation plan, including any sites secured for their construction; 2. Transfers from the general account and other special accounts; 3. Transfers and funds deposited from the Public Capital Management Fund under the Public Capital Management Fund Act or other funds; 4. Borrowings under Article 42; 5. Income from investments and loans under paragraph (2)7; 6. Other income. (2) The Account’s expenditure shall consist of the following:

1. Costs of site acquisition, construction, relocation, and related matters for major state institutions and other public facilities prescribed by Presidential Decree to be located in the new administrative capital; 2. Support for infrastructure installation under Article 22(2); 3. Repayment of principal and interest on borrowings under Article 42; 4. Repayment of principal and interest on funds deposited under paragraph (1)3; 5. Surrounding-area support projects under Article 47; 6. Costs of related measures under Article 48; 7. Investments in and loans to project implementers for project financing; 8. Other construction-related expenditure prescribed by Presidential Decree. (3) Necessary matters concerning conditions for investments and loans under paragraph (2)7 and related matters shall be prescribed by Presidential Decree.

Article 41 (Transfers from general and other special accounts and funds) To secure resources for expenditure, the Account may receive transfers from the general account, other special accounts, or funds as provided in the budget. Article 42 (Borrowings) (1) If expenditure resources are insufficient, long-term borrowing may be undertaken at the Account’s expense within the amount approved by the National Assembly. (2) If funds for expenditure are temporarily insufficient, the Account may undertake temporary borrowing at its expense. (3) Principal and interest on temporary borrowing under paragraph (2) shall be repaid within the fiscal year concerned. Article 43 (Reserve funds) The Account may include an appropriate reserve in its expenditure budget to meet unforeseen expenditure outside or exceeding the budget.

Article 44 (Carryover of expenditure appropriations) Notwithstanding Article 38 of the Budget and Accounts Act, expenditure appropriations unused during the fiscal year may be carried over and used the following year. Article 45 (Treatment of surplus) Any surplus upon settlement of the Account shall be transferred to the following year’s revenue. Chapter VII. Supplementary Provisions Article 46 (Reduction or exemption of local taxes and charges) (1) Where necessary for smooth implementation of construction, local governments may reduce or exempt acquisition tax, registration tax, property tax, aggregate land tax, and other taxes for the project implementer as prescribed by the Local Tax Act. (2) Where necessary for smooth implementation, the State and local governments may reduce or exempt farmland creation charges, substitute grassland creation charges, substitute forest-resource creation charges, ecosystem conservation cooperation charges, metropolitan transportation facility charges, and development-restriction-zone damage charges for the implementer, as prescribed respectively by the Farmland Act, Grassland Act, Mountainous Districts Management Act, Natural Environment Conservation Act, Special Act on Metropolitan Transport Management, and Act on Special Measures for Designation and Management of Development Restriction Zones.

Article 47 (Support projects for surrounding areas) (1) The Minister of Construction and Transportation may prepare plans for support projects in surrounding areas to improve residents’ living convenience and welfare (“surrounding-area support projects”). (2) Before preparing a plan under paragraph (1), the Minister shall consult the metropolitan mayor, city mayor, or county head having jurisdiction over the surrounding area. (3) That metropolitan mayor, city mayor, or county head shall implement the projects. (4) All or part of the necessary costs shall be supported from the Account. (5) Necessary matters concerning preparation of plans, project types, support methods, and other aspects of surrounding-area support projects shall be prescribed by Presidential Decree.

Article 48 (Related measures) (1) To ensure smooth construction, the Minister of Construction and Transportation shall prepare measures for supplying construction materials and personnel and report them to the Committee. (2) Heads of the relevant central administrative agencies shall prepare support measures for residents moving into the new administrative capital and employees of relocating institutions, to ensure its smooth functioning, and report them to the Committee. Article 49 (Entry onto another person’s land) (1) When conducting surveys or measurements for an implementation plan, or where necessary for implementation, the project implementer may enter land occupied by another person, temporarily use another person’s land for materials storage or temporary roads, and alter or remove bamboo, trees, earth, stone, or other obstacles.

(2) Article 130(2)–(9), Article 144(1)2 and 3, and Article 144(3)–(6) of the National Land Planning and Utilization Act apply mutatis mutandis to paragraph (1). References to an “urban-planning-facility project implementer that is an administrative authority” shall be read as the “project implementer” under this Act. (3) Paragraphs (1) and (2) also apply mutatis mutandis to officials of relevant administrative agencies and employees of relevant institutions or organizations involved in construction who have received permission from the Committee or the Minister of Construction and Transportation. Article 50 (Compensation for loss) (1) Where a person suffers loss from activities under Article 49(1) or (3), the project implementer, Committee, or Minister of Construction and Transportation shall compensate that loss.

(2) Article 131(2)–(4) of the National Land Planning and Utilization Act applies mutatis mutandis to compensation under paragraph (1). The Central Land Expropriation Committee shall have jurisdiction over compensation adjudications. Article 51 (Requests to inspect documents and related matters) Where necessary to implement construction, the project implementer may request registry offices or heads of other relevant administrative agencies to permit inspection or copying of necessary documents, or issue certified copies or extracts, free of charge. Article 52 (Requests for materials) The project implementer may request the heads of relevant institutions to provide materials necessary for implementation. Recipients shall comply unless special grounds justify refusal.

Article 53 (Reports and inspections) (1) Where necessary to implement this Act, the Committee or Minister of Construction and Transportation may order the project implementer to report or submit materials concerning construction, have subordinate officials inspect construction-related work, or request necessary materials from heads of relevant institutions. A recipient of a request for materials shall comply unless special grounds justify refusal. (2) Officials inspecting construction-related work under paragraph (1) shall carry identification showing their authority and present it to the persons concerned. (3) Necessary matters concerning that identification shall be prescribed by Presidential Decree.

Article 54 (Vesting of public facilities and related property) (1) Where construction creates new public facilities under Article 2(13) of the National Land Planning and Utilization Act, excluding parking lots and sports grounds throughout this article, or facilities replacing existing public facilities, Article 65 of that Act applies mutatis mutandis to their vesting. References to an “administrative authority” shall be read as the “project implementer” under this Act. (2) For registration of public facilities and property under paragraph (1), the implementation-plan approval and completion-inspection certificates may replace documents proving the cause of registration under the Registration of Real Estate Act. (3) In applying the National Land Planning and Utilization Act under paragraph (1), where the managing authority for property is unclear, the Minister of Construction and Transportation shall be deemed the authority for roads, rivers, and ditches, and the Minister of Finance and Economy for other property.

Article 55 (Management of public facilities) Unless another statute specially provides otherwise, the project implementer shall manage public facilities installed through the project from completion until they vest in the relevant managing authority. Article 56 (Restrictions on disposal of national and public land) (1) State- or local-government-owned land within the proposed site that is necessary for construction shall not be sold or transferred for purposes other than the development project. (2) Notwithstanding the State Property Act, Local Finance Act, or other statutes, state- or local-government-owned property within the proposed site that is necessary for construction may be transferred to the project implementer by negotiated contract.

For administrative property, the Committee shall first consult the relevant agency head on discontinuing its administrative use and transferring it. (3) Upon a consultation request under the second sentence of paragraph (2), the agency head shall take the necessary consultation measures within 60 days. (4) Notwithstanding other statutes, state property to be transferred under paragraph (2) whose managing authority cannot be identified shall be managed or disposed of by the Minister of Finance and Economy. Article 57 (Deemed public officials for penal provisions) Committee members, advisory committee members, Committee employees and former holders of those positions, and persons who have performed Committee work on secondment, who are not public officials, shall be deemed public officials for purposes of Articles 129–132 of the Criminal Act in relation to Committee business.

Article 58 (Delegation and entrustment) The Committee or Minister of Construction and Transportation may delegate or entrust part of its powers or duties under this Act to heads of relevant central administrative agencies, metropolitan mayors, provincial governors, or the project implementer, as prescribed by Presidential Decree. Chapter VIII. Penal Provisions Article 59 (Disclosure of official secrets) A person who discloses secrets learned in the course of work in violation of Article 35 shall be punished by imprisonment for up to five years or a fine of up to 50 million won. Article 60 (Penalties) A person falling under either of the following shall be punished by imprisonment for up to three years or a fine of up to 30 million won: 1. A person who undertakes activities under Article 16(1) without the required permission; 2. A person who, in violation of Article 81(2) of the National Land Planning and Utilization Act as applied mutatis mutandis by Article 16(2), undertakes any activity listed there without permission. Article 61 (Joint penal liability) Where a corporation’s representative, or an agent, employee, or other worker of a corporation or individual, commits an offense listed in Article 60, the offender shall be punished and the corporation or individual shall also receive the fine prescribed in the relevant provision.

Supplementary Provisions <Act No. 7062, January 16, 2004> (1) (Effective date) This Act shall enter into force three months after promulgation. (2) (Repeal of another Act) The Special Act on Measures for the Construction of a Temporary Administrative Capital is repealed. (3) (General transitional measures) Surveys, research, and related work conducted by the Minister of Construction and Transportation concerning construction before this Act takes effect shall be deemed conducted by the Committee. [1] After Namgyeong was established, Seoul served as the center of local administration for the Gyeonggi area. In late Goryeo, however, it was reorganized as Hanyang-bu. Reorganization of local administration to restrain regional powers and strengthen the monarchy abolished the three-capital system, and Namgyeong likewise became an ordinary prefecture (Seoul Metropolitan Government, Six Hundred Years of Seoul, 1977, vol. 1, pp. 144–145). [2] The highest state deliberative body in late Goryeo.

Beginning as a forum where chief ministers and officials of major central departments discussed state affairs, it expanded into an administrative institution directly carrying out major tasks. The Dopyeonguisasa continued until it was renamed the Uijeongbu in 1400, the second year of King Jeongjong of Joseon (Academy of Korean Studies, Encyclopedia of Korean Culture, 1991, vol. 7, pp. 27–28). [3] Korean Translation of the Annals of the Joseon Dynasty: the translation completed in 1993 by the King Sejong Memorial Society and the Korean Classics Research Institute and published on CD-ROM in 1995 by the Annals CD-ROM Publication Committee. Annals of Taejo, year 1, September 3, sinsa day. [4] Ibid., Annals of Taejo, year 2, December 11, imo day. [5] Ibid., Annals of Taejo, year 3, August 13, gyeongjin day. [6] The Dopyeonguisasa submitted the following recommendation.

“Left Chief State Councillor Jo Jun, Right Chief State Councillor Kim Sa-hyeong, and others consider that, since ancient times, whenever a ruler has arisen under Heaven’s mandate, he has invariablyUnrelated / insufficient chosen a capital to settle his people. Thus Yao established his capital at Pingyang, the Xia at Anyi, the Shang at Bak [the source gives 박 (逃), with an apparently inconsistent Chinese character], the Zhou at Fenghao, the Han at Xianyang, and the Tang at Chang’an. Some chose the place where they first arose; others chose advantageous terrain. All sought to cherish the fundamental seat and bring peace to the four quarters.

“Since Dangun, our country has sometimes united and sometimes divided, each polity establishing its own capital. After the Wang dynasty unified it and established its capital at Songak, successive generations inherited the throne for nearly five hundred years, until its heavenly fortune ended and it naturally fell. We respectfully consider that Your Majesty, through great virtue and sacred achievements, has received Heaven’s mandate, majestically established a state, and reformed its institutions to establish a national line for countless generations. You should now choose a capital to lay an enduring foundation. Humbly considering Hanyang, its excellent surrounding mountains and waters have been renowned since ancient times. Road distances in the four directions are balanced, and boats and carts can reach it. Establishing a permanent capital here would accord with the will of Heaven and the people.” The king commanded:

“Proceed as recommended.” [The source’s closing quotation mark is corrupted.] (Korean Translation of the Annals of the Joseon Dynasty, cited above, Annals of Taejo, year 3, August 24, sinmyo day.) [7] Ibid., Annals of Taejo, year 5, April 19, byeongo day. [8] The temporary move to Songdo under Jeongjong was intended as a temporary change of royal residence away from Hanyang, where disturbances frequently occurred. The royal ancestral shrine and half the government offices remained in Hanyang (Seoul Metropolitan Government, Six Hundred Years of Seoul, 1997, vol. 1, p. 180). Nevertheless, when returning to Hanyang was discussed under Taejong, some advocated moving the ancestral shrine and altars of soil and grain to Songdo to make it the full capital, while others proposed establishing a new capital at a third site, Muak.

This may be understood as a conflict between officials unwilling to leave Gaegyeong, their longstanding base, and Taejong’s determination to move to Hanyang in accordance with Taejo’s wishes. Divination concerning the three sites was eventually performed at the royal ancestral shrine. Hanyang received the most favorable signs, and return there was decided (Annals cited above, Annals of Taejong, year 4, October 6, gapsul day). [9] A unified code providing the basis of government, compiled from laws issued early in Joseon. After his accession, Sejo began compiling it to harmonize all existing law into an enduring code. Following several revisions, it was completed in 1485 under Seongjong.

It became the fundamental governing code as the immutable constitutional law of the ancestors, possessing such sanctity that even subsequent revisions did not deleteUnrelated / insufficient its provisions (Academy of Korean Studies, Encyclopedia of Korean Culture, 1991, vol. 1, pp. 839–840). [10] “Responsible for the capital’s registers [source: 口帳], market shops, houses, fields and land, the four mountains, roads, bridges, ditches, arrears, debts, fighting, daytime patrols, examination of corpses, vehicles, matters concerning cattle and horses [source: 故失牛馬], nakgye [烙契], and related affairs.” (Gyeongguk Daejeon, Personnel Code, Capital Offices, Hanseong-bu.) [Translator’s note: The characters in the source for the registers, cattle-and-horse matters, and nakgye are retained where their exact reading or scope is uncertain; no missing wording has been supplied.] [11] The members considered that local autonomy legislation also required a constitutional basis. They therefore deferred the bill until the local-government provisions of the South Korean Interim Charter, serving as a constitution, were settled. Stenographic Record of the South Korean Interim Legislative Assembly, no. 123, p. 13. [12] Stenographic Record of the Constituent Assembly, vol. 3, second session, no. 26, p. 468. [13] Konrad Hesse, Principles of Constitutional Law of Unified Germany, translated by Gye Hui-yeol (Samyeongsa, 2003), p. 43, marginal no. 34. [14] Heo Yeong, Constitutional Theory and the Constitution (Bagyeongsa, 2004), p. 41.

[15] See Heo Yeong, Constitutional Theory and the Constitution, cited above, p. 73.

Identification: CZE-2001-2-009 Identification: CZE-2001-2-009 Pl. US 14/01 20 June 2001 Pl. US 14/01

In the reasoning of its judgment, the Constitutional Court found that the interpretation of the Constitution on which the Government relied was inconsistent with the Constitution for several reasons.

In its submission, the Government inferred from its interpretation of an ordinary statute, in particular, that the President of the Republic may appoint three members of the CNB Bank Board (the Governor and two Vice-Governors) only with the consent of the Prime Minister (or a member of the Government authorized by him), and that those three become members of the Bank Board ‘directly by operation of’ the CNB Act (without the President appointing them to the Bank Board). It also concluded that the President's power under Article 62(k) of the Constitution to appoint members of the Bank Board without countersignature applies only to its other four members.

The Constitutional Court, however, found this interpretation inconsistent with the Constitution in both respects. First, under Article 62(k) of the Constitution, the President appoints, without the countersignature of a Government representative, not merely four but all the members of the Bank Board: seven persons. His appointment power cannot be restricted to four of them merely through the interpretation of an ordinary statute, because the Constitution can be amended only by a constitutional act. It must likewise be emphasized that the present Constitution recognizes no membership of the CNB Bank Board arising without appointment by the President under Article 62(k) of the Constitution. Under the Constitution, no one can become a member of the Bank Board solely ‘by operation of law,’ as the Government argues, when the Constitution makes membership dependent exclusively on presidential appointment. The Constitution, as the law of supreme legal force, cannot be reinterpreted through an ordinary statute; an ordinary statute must always be interpreted consistently with the Constitution.

The Constitutional Court also held that a constitutionalLongus ususConstitutional content procedure practicedLongus usus over a long period, reflecting a certain consensus among constitutional bodies about values and institutions and repeatedly confirming a particular interpretation of a constitutional provision, must be understood as a constitutional conventionGeneral constitutional custom that cannot be disregarded when interpreting the Constitution.

Judgment of the Plenum of the Constitutional Court of 20 June 2001, file no. Pl. US 14/01, in proceedings under Article 87(1)(k) of the Constitution of the Czech Republic and section 120 of Act No. 182/1993 Coll., on the Constitutional Court, as amended, concerning a petition for a ruling that a decision of the President appointing the Governor or a Vice-Governor of the Czech National Bank requires the countersignature of the Prime Minister or a member of the Government authorized by him to be valid.

I. Operative part The petition is dismissed. II. Reasons:

I. On 20 April 2001 the Constitutional Court received a petition instituting proceedings in which the Prime Minister and the Government of the Czech Republic, relying on Article 87(1)(k) of the Constitution of the Czech Republic (hereinafter ‘the Constitution’) and section 120 of Act No. 182/1993 Coll., on the Constitutional Court, sought a judgment declaring that the President's decisions of 29 November 2000 appointing the Governor and a Vice-Governor of the Czech National Bank require, for their validity, the countersignature of the Prime Minister or a member of the Government authorized by him.

They state at the outset that, by decisions of 29 November 2000, President Václav Havel appointed Zdeněk Tůma Governor of the Czech National Bank (hereinafter ‘CNB’) and Luděk Niedermayer a CNB Vice-Governor, without asking the Prime Minister to countersign those decisions within the meaning of Article 63(3) of the Constitution, and without first removing Zdeněk Tůma from his office as CNB Vice-Governor or Luděk Niedermayer from his office as a member of the CNB Bank Board (hereinafter ‘the Bank Board’) appointed from among CNB senior staff.

In their reasons, the petitioners state that the Government does not challenge the President's previous practice, since 1993Longus usus, of not submitting his decisions appointing the Governor and Vice-Governors to the Prime Minister for countersignature, although it is convinced that ‘…such decisions of the President are not valid without the Prime Minister's countersignature.’ This procedure deprives the Prime Minister, or the Government, of the power to consider countersigning, or to countersign, the President's decisions.

Because this legal question is of exceptional importance and consequence, and the President maintains his previous position and practice, the Prime Minister and the Government ask the Constitutional Court, as the judicial body protecting constitutionality, to resolve this dispute over the extent of the powers of the President and the Prime Minister (or the Government) as state bodies.

The fundamental question for the Constitutional Court is therefore the requirement of Government countersignature whenever the President appoints the Governor or Vice-Governors of the CNB, beginning on 29 November 2000. In its petition, the Government disregards the President's previous practice, under which, since the yearLongus usus 1993, he did not submit his decisions appointing the Governor and Vice-Governors to the Prime Minister. It nevertheless states that this practice deprives the Prime Minister (or the Government) of his powers and that the Constitutional Court must resolve the dispute and change this unconstitutional practice.

As a matter of general theory, the Prime Minister and the Government of the Czech Republic base their petition on the view that the principle of representative democracy itself requires priority to be given to decision-making by a politically accountable state body over a body that is not accountable for its decisions.

They interpret the relationship between Article 62 and Article 63(2) of the Constitution accordingly. Whereas Article 62 lists the powers the President exercises independently, without needing the Prime Minister's consent, Article 63(2) identifies a second group of presidential powers: those whose exercise requires the countersignature of the Prime Minister or a member of the Government authorized by him. Article 63(3), concerning countersignature of decisions within this sphere of presidential authority, is merely the logical consequence of the President's lack of accountability for the exercise of his office and a means enabling the Government to assume responsibility.

These provisions also apply to presidential ‘powers not expressly specified in a constitutional act’ if they are conferred by statute. The petition before the Constitutional Court assumes that the power to appoint the Governor and Vice-Governors of the CNB (section 6(2) of Act No. 6/1993 Coll., on the Czech National Bank) is precisely such a new presidential power not expressly specified in Article 62 of the Constitution. That article expressly provides only that the President, without countersignature, ‘appoints the members of the Bank Board of the Czech National Bank.’

Accordingly, in the view of the Prime Minister and the Czech Government, presidential appointment of the CNB Governor and Vice-Governors requires the countersignature of the Prime Minister or a member of the Government authorized by him to be valid. The petitioners submit that appointing the Governor and Vice-Governors involves new powers unknown to the Constitution and created only by the CNB Act. In parts IV and V of their petition, they state that the Constitution does not mention the Governor or Vice-Governors at all, either in Article 98, which concerns the CNB alone, or in Article 62(k).

To support their contention that the offices of Governor and Vice-Governor are something new, outside Article 62(k) of the Constitution, the petitioners cite provisions of several statutes. From these they infer that ‘the powers of the Governor and Vice-Governors are not connected solely with their membership of the Bank Board (where even the Governor is essentially only first among equals),’ and that ‘the Governor in particular has important responsibilities unrelated to his membership of the Bank Board and conferred on him as a single-person authority’ (petition, p. 6). In the petitioners' view, the statute gives the Bank Board the status of the CNB's supreme governing body, but defines its remit only illustratively through a list of matters of greater importance, without mentioning who is empowered to act and decide in other matters. ‘At the highest level, that person is precisely the Governor as a single-person authority, whose position in this respect is fundamentally comparable to that of the head of a central state administrative authority’ (petition, p. 6).

In the petitioners' view, the offices of CNB Governor and Vice-Governor are not merely titles for certain members of the Bank Board, but designate the CNB's highest administrative officials, exercising important and independent powers. Their appointment therefore derives not from Article 62(k) of the Constitution but from an additional presidential power under Act No. 6/1993 Coll. From these premises, the petition concludes that appointment of the Governor and Vice-Governors constitutes a new power conferred by an ordinary statute and is therefore subject to countersignature.

The petitioners also point to the continuity between the CNB Act and the earlier rules governing the federal State Bank of Czechoslovakia, whose Governor was appointed by the President on the Government's proposal and whose Vice-Governors were appointed on a proposal by the Governor discussed with the Government. They see no reason to assume that the Constitution and the CNB Act intended to depart so far from those immediately preceding arrangements as to exclude the Government entirely from appointing the Governor and Vice-Governors.

The petition further objects that the CNB Governor and Vice-Governor were appointed without first being removed from their existing positions on the Bank Board: Zdeněk Tůma as Vice-Governor and Luděk Niedermayer as a member of the Bank Board. Such removal would require countersignature; in this respect, the connection between this objection and the fundamental issue in the dispute over powers is evident.

The Constitutional Court received the President's observations on the petition instituting a dispute over powers on 17 May 2001 (by fax on 9 May 2001). The President principally objects that even the new, more precisely worded petition fails to meet the requirements of the Constitution and the Constitutional Court Act. Section 124(1) of that Act cannot apply where the challenged decision actually exists and is being acted upon. In the statutory scheme, section 124 applies only if no decision has yet been issued. Here, section 125(1) must instead be applied and annulment of an existing decision requested. The Government does not do so, and the Constitutional Court should therefore again reject its petition.

The observations also point out that the petitioners do not challenge the decision of 11 February 1999 appointing another Vice-Governor, Mr Oldřich Dědek, although he remains in office and that decision likewise bears neither the Prime Minister's countersignature nor that of an authorized member of the Government. The petition is also internally inconsistent because the relief sought includes the alternative of countersignature by an authorized Government member, although in the particular case challenged the Prime Minister authorized no Government member. This clearly shows that the request seeks only an abstract interpretation of the Constitution.

The President further states that the list of powers he exercises independently under Article 62 of the Constitution includes appointment of all members of the Bank Board. He considers that Act No. 6/1993 Coll., on the Czech National Bank, which implements this provision in detail and names the individual offices held by Bank Board members, creates no new original presidential power requiring the Prime Minister's participation under Article 63(2) and (3) of the Constitution. If naming offices in a statute were understood as creating a new presidential appointment power, then specifying and describing the functions of the Bank Board's other four members by statute would likewise effectively displace Article 62(k) and render it inapplicable. The President could then independently appoint none of the Bank Board's members. Since a rule of lower legal force cannot alter a rule of higher legal force, such an interpretation of the Constitution and the statute is inconceivable.

According to the President's observations, the legislature intended not to restrict the presidential power conferred by Article 62(k) of the Constitution, but to establish offices within the Bank Board and criteria for selecting the four members who may be appointed only from among the CNB's senior staff. In support, he cites the stenographic record of the Czech National Council's plenary sitting and the resolution of its Constitutional and Legal Affairs Committee of 17 December 1992, at which the Government's bill was discussed. He adds that the views of other competent constitutional officials have not changed since then, as also demonstrated by the present Deputy Prime Minister for Legislation's speech in the Senate plenary on 7 August 2000.

In the President's view, the constitution-maker considered it unnecessary to distinguish between Bank Board members regarding their appointment, leaving only nonessential functional differences in their positions to ordinary legislation. He finds unpersuasive the objection that the Constitution does not recognize the offices of Governor and Vice-Governor, so that their appointment derives from a statutory power.

Besides the fact that they, too, are Bank Board members and that the CNB Act must be interpreted through the Constitution, rather than the Constitution through that Act, the chronological sequence of adoption of the two instruments must also be noted. The Constitution was adopted on 16 December 1992 and the CNB Act only the following day. The Constitution thus could not employ concepts it did not know and did not need.

On 12 June 2001 the Prime Minister submitted a reply to the President's observations, emphasizing the need to decide the merits. In his view, the President's decisions of 29 November 2000 appointing Zdeněk Tůma Governor and Luděk Niedermayer a CNB Vice-Governor have not yet become valid. The petition therefore does not seek the procedure under Article 125(1) of the Constitutional Court Act (that is, annulment of the decisions). Because he regards the CNB Governor and Vice-Governors as single-person authorities with important independent responsibilities and powers, the Prime Minister requires their appointment under the procedure in Article 63(3) and (4) of the Constitution, with countersignature. This contrasts with the other four Bank Board members, for whom he considers the procedure under Article 62(k), without the countersignature of the Prime Minister or a member of the Government authorized by him, constitutional.

II. The Constitutional Court recalls that on 22 December 2000 the petitioners had already submitted a substantively identical petition, whose imprecise prayer for relief prevented a decision on the merits (Pl. US 58/2000). The Prime Minister and the Government's present petition has remedied that defect insofar as the relief sought challenges the validity of the President's decisions of 29 November 2000 appointing Zdeněk Tůma Governor and Luděk Niedermayer a CNB Vice-Governor because they were not submitted to the Prime Minister for countersignature.

Since the Prime Minister and the Government's petition states that it does not challenge the President's earlier practice of not submitting appointments of the Governor and Vice-Governors for the Prime Minister's countersignature, and since the Government points to the need to change that practice for the future, the Court again considered whether this was an actual dispute over powers or merely a request for an opinion ‘pro futuro.’ In the latter case, the Court would have to reject the petition altogether. The Government's unusual approach still consists in seeking only an opinion ‘at an abstract level’ under section 124(1) of the Constitutional Court Act, although its petition challenges the validity of a specific presidential decision and it would therefore be appropriate to seek its annulment under section 125(1) of that Act, as the President objects.

The Court considered this serious objection but found no ground to reject the petition either on that account or because Act No. 6/1993 Coll., on the CNB (hereinafter ‘the CNB Act’), was subsequently amended by Act No. 442/2000 Coll., amending Act No. 6/1993 Coll., on the CNB. A specific decision had been challenged while Act No. 6/1993 Coll. was in force. Moreover, the constitutionality of certain provisions of the amendment to the CNB Act is the subject of separate proceedings before the Court, file no. Pl. US 59/2000.

The petitioners' contention that they could not proceed under Article 125 of the Constitutional Court Act because the appointment decisions ‘were undoubtedly issued by the President as the competent authority’ is untenable. That circumstance does not preclude applying section 125(1) of the Act: the challenged presidential decision is undoubtedly, as that provision requires, a decision of a body participating in the dispute over powers and was issued in the matter specified in the petition instituting proceedings. In his reply of 12 June 2001, the Prime Minister further states that he does not seek annulment of the challenged presidential decisions because they have not yet become valid. Whether they become valid, and thus legally effective, will be established only once the President submits them to the Prime Minister for consideration of his countersignature.

Having considered all the circumstances, the Court concluded that this is a petition instituting proceedings in a dispute over powers within the meaning of section 120(1) of the Constitutional Court Act. It challenges specific presidential decisions and ultimately requests a judgment under section 124(1) declaring: ‘The decisions of the President of the Republic of 29 November 2000 appointing Zdeněk Tůma Governor of the Czech National Bank and Luděk Niedermayer a Vice-Governor of the Czech National Bank require the countersignature of the Prime Minister or a member of the Government authorized by him to be valid.’ Although the petition does not cite section 125(1) or expressly seek ‘annulment of the challenged decision,’ under section 125(1) it is for the Constitutional Court itself to annul by judgment a decision which, in the matter specified in the petition, it considers another body competent to issue. The Prime Minister and the Government's petition identifies the challenged decisions precisely, so there is no doubt about their content.

Having concluded that the petition by the Prime Minister and the Czech Government satisfied the conditions in Division Eight of the Constitutional Court Act, the Court commenced proceedings in a dispute concerning the extent of the powers of state bodies under Article 87(1)(k) of the Constitution and section 120 of the Constitutional Court Act.

The petition relies on four lines of argument: —the ‘single-person authority’ features of the CNB Governor's position; —a comparative interpretation of other appointments under Article 62 of the Constitution; —an interpretation of the intention of the constitution-maker or legislature and continuity with the previous arrangements; —reference to the principles of a parliamentary democratic constitutional state.

1. Appointment of Bank Board members to the offices of CNB Governor and Vice-Governor takes place through a single act of appointment. The petitioners themselves accept this premise (reply, p. 4), recognizing the unforeseeable complications and potential dysfunction that two separate appointments—one as a Bank Board member and one as CNB Governor or Vice-Governor—would cause. This is particularly so because, unlike the Constitutional Court, there is no legal obligation to select these three Bank Board officials from among already appointed members. Nevertheless, although no new act of appointment, and in that sense no new power under Article 63 of the Constitution, is involved, the petitioners consider the CNB Governor's position so different from that of the other Bank Board members that his statutory powers justify the appointment procedure under Article 63(2), rather than Article 62, of the Constitution.

According to the petitioners, although the statute (section 5 of the CNB Act) gives the Bank Board, as a collegiate body, the status of ‘supreme governing body of the Czech National Bank,’ it defines its reserved remit ‘only illustratively, by listing matters of greater importance. The CNB Act says almost nothing about who may act and decide in other matters’ (petition, p. 6). They therefore consider that at the highest level this person is the Governor as a single-person authority, with independent responsibilities and powers substantially exceeding those arising from membership of the collegiate Bank Board (reply, p. 4).

Neither assertion, however, corresponds to reality. First, the CNB Act does not define the Bank Board's remit ‘only illustratively’; section 5(1) unambiguously formulates its principal tasks and also designates the Bank Board as a whole the ‘supreme governing body of the CNB.’ Subsection 2 introduces a further series of its powers with the words ‘further, in particular.’ The intention is not to limit the Board's remit but, on the contrary, to allow other, unnamed matters to be included. The purpose of this provision is thus to expand, rather than restrict, the scope of the Bank Board's decision-making.

These arrangements themselves generally call into question the CNB Governor's status as a ‘single-person authority with independent decision-making power.’ Nor, however, are the petitioners' specific references to statutory powers of the Governor intended to establish that status persuasive.

If a single-person authority is understood as a person who acts and decides alone as an authority, whereas a representative of a collegiate body acts only in its name and is fully bound by its decisions, the attempt to regard the CNB Governor as an independent single-person authority cannot succeed. The Governor is one member of the Bank Board: the CNB Act provides that the Board consists of the Governor, two Vice-Governors, and four other CNB senior staff members (section 6(1)). By law, the Bank Board is the supreme governing body as a college; individual members therefore do not possess its decision-making powers.

The Governor differs from other members in that he, or a Vice-Governor authorized by him, chairs the Board (section 7 of the CNB Act); he, or an authorized Vice-Governor, represents the CNB externally (section 8); and he may attend Government meetings in an advisory capacity (section 11). Even this does not establish any element of a single-person authority in relation to the Bank Board, since he must respect its view and convey its position; moreover, this involves an advisory role, not a decision-making power. Within the Bank Board, even the petitioners recognize the Governor only as first among equals.

As regards further powers of the Governor, the entire CNB Act contains only section 50(2), under which the Governor may release CNB employees from their duty of confidentiality in official matters in the public interest. The provisions mentioned above are the only exceptions in the Governor's favor, while the CNB Act contains a long series of provisions treating what the petitioners call ‘other matters’ as powers of the Bank Board as a collegiate body.

The petitioners further state that under section 4 of Act No. 309/1999 Coll., on the Collection of Laws and the Collection of International Treaties, the CNB Governor has authority to sign legal regulations issued by the CNB and promulgated in the Collection of Laws. This power, too, cannot be regarded as an expression of decision-making by the Governor as a single-person authority. Just as the Constitution specifies the persons who sign statutes for promulgation, the CNB Governor's signature here has no constitutive significance. He is obliged to sign the regulation being promulgated, and refusal to sign cannot be treated as an obstacle to its validity.

The petitioners also invoke the CNB Governor's powers in administrative proceedings conducted by the CNB, specifically in deciding an internal administrative appeal (section 61 of the Administrative Procedure Code) or reviewing a decision outside appeal proceedings (section 65(1) of that Code). In fact, even when exercising those powers, the Governor decides ‘on the basis of a proposal by a special commission appointed by him’ (sections 61(2) and 65(1)). Moreover, the CNB Act (section 46(5)), the Banks Act, No. 21/1992 Coll. (section 41), and the Foreign Exchange Act (section 3(5) of Act No. 219/1995 Coll.) entrust decisions on internal appeals against CNB decisions in more important matters to the Bank Board as a collegiate body. In other matters too, the CNB's supreme governing body is the Bank Board, which adopts its own rules of procedure (section 7(2)).

It follows that the Constitutional Court cannot agree with the petitioners. These statutes confer no new powers on the President, nor does the position of the Governor and Vice-Governors, compared with the other members, extend beyond the Bank Board sufficiently to regard them as new authorities requiring a new, separate presidential appointment. The CNB Act does not add new appointment powers to the President's rights, since under the Constitution he appoints all Bank Board members without the Constitution naming their individual titles.

Unlike other appointments under Article 62, the Constitution does not need to specify their number and titles in detail. This is done by the CNB Act, which identifies a Governor, two Vice-Governors, and four other members, thus specifying the Bank Board's composition. Since the CNB Act was promulgated only one day after the Constitution itself and its text was known when the Constitution was adopted, it can be assumed that the constitution-maker would have worded Article 62(k) differently had it intended to introduce a procedure for appointing the Governor different from that for other members.

2. The Court also compared appointment arrangements in every instance of presidential competence under Article 62 of the Constitution. It did so in response to the petitioners' objection that subparagraph (k) merely states that the President appoints Bank Board members, whereas subparagraph (e) specifies that he appoints not only Constitutional Court judges but also its President and Vice-Presidents, although those officeholders are also judges and thus members of the Court's Plenum. In the petitioners' view, the Constitution does so because the President and Vice-Presidents have additional special responsibilities connected with their particular offices (petition, p. 4). The petition does not, however, explain why the Constitution does not take the same approach to the CNB Governor, to whom the petitioners likewise attribute additional special responsibilities. If that were indeed the case, their reasoning would require the Constitution expressly to name the CNB Governor's office in this appointment arrangement under Article 62 as well. It does not.

In the Constitutional Court's view, the different appointment formulas in Article 62 are primarily explained by another circumstance. The arrangements in Article 62(e) for the Constitutional Court, Article 62(j) for the Supreme Audit Office, and Article 62(a) for the Prime Minister and other Government members differ from Article 62(k) because, in each of the first three cases, the person appointed to lead the body had to be singled out: that person's appointment was regulated differently from the appointment of the body's other members. Moreover, appointment of members of those bodies also requires the participation of another body—the Senate, the Chamber of Deputies, or the Prime Minister.

Thus, under subparagraph (a), the rules for appointing and removing the Prime Minister differ from those for other members of the Government. Under Article 68(2), other Government members are appointed or removed only on the Prime Minister's proposal. The same is true of Constitutional Court members under subparagraph (e): the President and Vice-Presidents are distinguished because their appointment from among Constitutional Court judges does not, unlike that of other judges, require the Senate's consent (Article 84(2)). Subparagraph (j) expressly mentions the President and Vice-President of the Supreme Audit Office because, under Article 97(2), they are appointed by the President of the Republic on the proposal of the Chamber of Deputies, whereas the other members are elected by the Chamber on the proposal of the President of the Supreme Audit Office. Precisely because no distinct appointment procedure is envisaged for the Governor and Vice-Governors among the Bank Board members, Article 62(k) confines itself to the brief formula: ‘appoints the members of the Bank Board of the Czech National Bank.’

In this connection, the Court considers it necessary to emphasize the fundamental difference between the President's appointment powers concerning the President and Vice-Presidents of the Constitutional Court and those concerning the CNB Governor and Vice-Governors. The Constitution requires the Senate's consent for appointment of all Constitutional Court judges, including those designated in Article 62 as President and Vice-Presidents (Article 84(2)). Here the constitution-maker recognizes that the subsequent appointment of a President and Vice-Presidents from among existing Constitutional Court judges must be expressly regulated by constitutional, not ordinary, law if a different regime is to apply, excluding in those cases the appointment method generally prescribed in Article 62(k). [The reference to Article 62(k) is reproduced as it appears in the source.]

Unlike the Constitutional Court, the Constitution draws no distinction between individual members of the Bank Board. Since it does not expressly distinguish the method of appointing the CNB Governor and Vice-Governors from that prescribed for all Bank Board members, an ordinary statute stating that the Governor and Vice-Governors are Bank Board members alongside the others cannot yield a different appointment procedure for some members unless the Constitution itself expressly allows it.

Whereas the President chooses the Constitutional Court's President and Vice-Presidents from among judges already appointed to that Court, he is under no obligation to appoint the CNB Governor and Vice-Governors from among existing Bank Board members. Unlike the rules for the Constitutional Court, the Constitution thus envisages no two different appointment regimes for the Governor and Vice-Governors on the one hand and the other Bank Board members on the other. It permits the Governor and Vice-Governors to be appointed simultaneously as Bank Board members by a single act. Still less can separate regimes be inferred from an ordinary statute; moreover, the simple list of Bank Board members in section 6 of the CNB Act cannot support such a conclusion at all.

There are nevertheless rational reasons in the CNB Act for treating appointment of the Governor and Vice-Governors separately from appointment of the other four Bank Board members in section 6(2) and (3). The two subsections impose different eligibility conditions: unlike the Governor and Vice-Governors, the other four members must be appointed ‘from among the senior staff’ of the CNB. It should be noted that this constitutionally questionable restriction has not been challenged. If the constitution-maker had intended two different methods for appointing the Governor and Vice-Governors and the other Bank Board members, or a further act appointing the Governor and Vice-Governors to a specified office only after their appointment as Bank Board members, that intention would have had to be reflected in constitutional distinctions of the kind made in other appointment cases under Article 62.

The elementary constitutional rule is this: if two different appointment regimes are introduced within an area of exclusive presidential power defined by the Constitution, both must be defined directly in a constitutional act. Fulfillment of this requirement is a conditio sine qua non.

A single appointment act for all Bank Board members is also supported by their common six-year term of office (section 6(4) of the CNB Act), which is unaffected by changes in individual members' positions, such as a member subsequently assuming the governorship. If the President has appointed Bank Board members as of a particular date, later appointment of one of them as Governor does not begin a new term.

In the Court's view, therefore, comparison of the appointment arrangements under Article 62 of the Constitution likewise does not support the Government's petition.

3. The petitioners also point to the continuity between the CNB Act and the previous arrangements for the State Bank of Czechoslovakia, whose Governor was appointed by the President on the Government's proposal and whose Vice-Governors were appointed on the Governor's proposal after discussion with the Federal Government. That statute was allegedly a model for the CNB Act in many respects. The petitioners see no reason to assume that the Constitution and the CNB Act intended to depart so far from those immediately preceding arrangements as to exclude the Government entirely from appointing the Governor and Vice-Governors (petition, p. 5).

The documents recording the origins of the CNB Act contradict this view. The Court found that, when drawing up the CNB Act, the Czech National Council rejected a proposal to retain the previous arrangements. The record of its sitting of 17 December 1992, at which it considered the Government's CNB bill, shows that the chamber accepted the Constitutional and Legal Affairs Committee's unanimous opinion that ‘…the Constitution does not, in any of its provisions, restrict the President's appointment power in any way’ (record of the 11th sitting of the Czech National Council, seventh electoral term). In his observations on the petition, the President states that today's constitutional officials share that view of their predecessors. He cites the present Deputy Prime Minister for Legislation's speech to the Senate plenary on 7 August 2000, describing appointment of the Bank Board's members—the Governor, Vice-Governors, and other members—as ‘the exclusive competence of the President, unrestricted by countersignature’ (stenographic record of the Senate sitting, 7 August 2000).

On continuity with the previous arrangements, the Court observes that the legislature undoubtedly proceeded from a different constitutional situation when drafting the Czech CNB Act. The earlier State Bank of Czechoslovakia Act had been adopted as a kind of quasi-constitutional regulation comparable to an organic law and, above all, in a federal state. The participation of a collegiate body—the Government, comprising both Czech and Slovak representatives—was an institutional counterweight to appointment by the President as a single, party-independent person. Following the breakup of the federation, those considerations no longer applied to the CNB's statutory framework, or lost their original dimension.

The legal view that Article 62 of the Constitution gives the President the right to appoint all Bank Board members without countersignature was respected and practiced continuously from 1993 until the debates on the amendment to the CNB Act in 2000. This interpretation was thus also confirmed by a gradually developedLongus usus constitutional customLongus usus. Constitutional customsGeneral constitutional custom, or conventions,General constitutional custom are known to be of great importance in a constitutional state precisely because they integrate the constitution into a functioning whole and fill the space between succinct statements of constitutional principles and institutions and the variability of constitutional situations. In a democratic state governed by the rule of law, it is scarcely conceivable that a contrived misinterpretation of the constitution should call into question an interpretation and its corresponding constitutional conventions, respected and unchallenged throughout the Constitution's existence, together with all previous practice, including a series of decisions never previously challenged.

What matters here is not, however, verifying how far the formal requirements of a ‘constitutional conventionGeneral constitutional custom’ are met. It is the simple fact that, for more than eight years, on the basis of a consensus about values and institutions at the constitutional level, a procedure was practiced that, without opposition from any constitutional body, repeatedly and unambiguously confirmed an interpretation of Article 62(k) as granting the President exclusive power to appoint the CNB Governor and Vice-Governors, a power not subject to the Prime Minister's countersignature.

No less significant is the fact that, despite the legal objections to this procedure with which the Prime Minister and the Government first approached the Court on 20 December 2000, those institutions in practice acknowledged, and still acknowledge, a state of affairs they claim contradicts the constitutionally prescribed allocation of powers. This is demonstrated by their challenging only the appointment of the Governor and one Vice-Governor, while disregarding the appointment of the other Vice-Governor, although, on their own view, his appointment likewise occurred in a manner they describe as unconstitutional and invalid.

Where the Government has also recognized the challenged appointments through subsequent conduct—as shown, for example, by correspondence from the Prime Minister himself, Deputy Prime Ministers, and individual ministers, invitations to Government meetings, and other acts of assent—an undesirableOther constitutional principle uncertainty in legal relations arises. Its risks fall primarily not on the disputing parties but on the natural and legal persons whose rights have been determined, quite apart from uncertainty about the officeholders' external status generally and their status in relations with foreign countries in particular.

Although, by Government Resolution No. 1210 of 28 November 2000, the Prime Minister and twelve other Government members unanimously decided that they ‘do not agree to the Prime Minister countersigning the President's decisions appointing Zdeněk Tůma Governor of the Czech National Bank and Luděk Niedermayer a Vice-Governor of the Czech National Bank,’ the Prime Minister and other Government members continue to deal with Zdeněk Tůma as CNB Governor. For example, in a letter of 28 February 2001, Prime Minister Miloš Zeman tells Governor Zdeněk Tůma that ‘as Governor of the Czech National Bank’ he will be informed of the meeting and invited to attend. This also entails recognition of the Governor's individual functions, including in the CNB's currency issuance and thus Zdeněk Tůma's right to sign newly issued banknotes, even though, by withholding consent to his appointment, the Government legally questioned the validity of that and all his other acts, including if countersignature were held to be constitutionally required.

Not only past practice but also the subsequent amendment to the CNB Act, No. 442/2000 Coll., clearly shows that the legislature did not proceed on the premise that appointments of the CNB Governor and Vice-Governors require countersignature. The petitioners derive the President's obligation to submit those appointments for the Prime Minister's countersignature from section 6(2) of the CNB Act, which provides that the President appoints the Governor and Vice-Governors. Exactly the same wording appears in section 6(2) as amended; the Government's interpretation would therefore have to conclude that countersignature remains obligatory there too.

Yet the legislature newly provided in section 6(3) of the amendment that the Government proposes the Governor and Vice-Governors. It is inconceivable that a legislature binding presidential decisions to a prior Government proposal would also insist on subsequent countersignature by the Prime Minister, as the Government's interpretation of amended section 6(2) would necessarily imply. Clearly, therefore, the legislature understood and understands section 6(2) only as listing and naming the persons who are Bank Board members.

4. The Government also argues that the principle of a democratic state governed by the rule of law, the principles that the people are the source of all state power and that state power serves all citizens, and the Constitution's conception based on parliamentary democracy require preference for decisions by a politically accountable state body over those of a body not accountable for its decisions. It concludes that, if the matter is considered doubtful, preference must be given to the interpretation that the presidential decision falls under Article 63 of the Constitution (petition, p. 3).

Although this may be accepted in general, it must also be observed that even in a democratic state governed by the rule of law with a parliamentary form of government, excluding Government countersignature may fully accord with these principles where special reasons justify protecting an institution that the Constitution intends to be independent of Government in the main areas of its activity. A right of countersignature would enable the Government at least to decide the Bank Board's personnel. In these circumstances, appointment by a President standing above political parties—albeit after consultations, but without being directly tied to the consent of a Government composed of representatives of one or more political parties—is part of the guarantees of CNB independence. CNB independence is a constitutional value deriving both from Article 98 (‘interference with its activities is permissible only on the basis of statute’) and its placement in the Constitution's separate Chapter Six, and from Article 62(k) and the CNB Act, particularly section 9(1): in pursuing its principal objective, the CNB is independent of Government instructions.

Within a democratic state governed by the rule of law, one can undoubtedly envisage arrangements for a central bank involving more cooperation and coordination with the Government, as with the German Bundesbank. In each country, however, it is for the constitution-maker to consider those relations in light of that country's situation and needs, and interpretation of its national bank legislation must conform to the constitutionally chosen conception. The principle in a constitutional state is that an ordinary statute may not do more than the Constitution permits. Where the Constitution establishes a rule, an exception is possible only if the Constitution itself or a later constitutional act expressly permits it. An ordinary statutory provision cannot be used to reinterpret the Constitution into a form it plainly does not have. Interpretation proceeds in the opposite direction, always from constitutional provisions to statutes, unless the constitutional provision itself expressly establishes an exception.

The CNB Act establishes no new presidential appointment power not already contained in Article 62(k) of the Constitution. It merely specifies the Bank Board's composition in terms of the number and titles of its members. Since the Government's interpretation does not deny the President's exclusive power to appoint all Bank Board members, recognizing a claim to countersignature for appointing the Governor and Vice-Governors would simultaneously allow the head of state independently to appoint all Board members while allowing the Prime Minister subsequently to refuse approval of the persons appointed Governor and Vice-Governors. This inherently carries more potential for dysfunction than, for example, appointment on a Government proposal, where prior negotiation and agreement are necessary. In this connection, consider that under Article 62(k) the President appoints all Bank Board members and, since the CNB Act provides for a seven-member Board, appoints all seven without restriction in this respect.

If appointment of the Governor and Vice-Governors mentioned in section 6(2) of the CNB Act were understood as a separate appointment, distinct from Article 62(k) and governed by Article 63 of the Constitution, consent might be withheld from appointing one of the seven Bank Board members Governor, or someone who is not a Board member at all might even be appointed CNB Governor. Yet since, on the petitioners' understanding, the Governor becomes a Bank Board member by operation of the CNB Act, one of the seven already appointed members would then have to leave: the statute provides for only seven members. Certainly, a member could voluntarily make room for the newly appointed Governor. But removal would be possible only if the conditions in section 6(6) of the CNB Act were met, which would ordinarily not be the case.

The Government's proposed conception is therefore unacceptable not only in light of Article 62(k), which recognizes no two separate appointments, first as a member and then as Governor or Vice-Governor, but also because the solution contradicts the principles of proportionate legal regulation and legal certainty. From a constitutional perspective, its internally divided structure would make it potentially dysfunctional.

The petitioners apparently recognize this and therefore seek to preserve their conception of different methods of appointing the Governor and Vice-Governors on the one hand and other Bank Board members on the other, while preventing separate, double appointments of the Governor and Vice-Governors as such and as Bank Board members. They achieve this, however, at the cost of an unconstitutional interpretation. In their view, the CNB Governor and Vice-Governors should be appointed with the Prime Minister's countersignature under Article 63(3) and (4), becoming Bank Board members ‘directly by operation of law,’ while appointment of the other four members remains with the President under Article 62(k), without countersignature.

In fact, however, the Governor is a Bank Board member not directly by operation of the CNB Act, but directly and primarily under the Constitution itself. Under the Constitution, the President appoints all Bank Board members without exception by the method specified in Article 62(k). When the CNB Act defines those members as the Governor, Vice-Governors, and other members, it in no way removes—and as an ordinary statute cannot remove—the Governor and both Vice-Governors from the President's constitutionally defined appointment authority.

The position is therefore that the present Constitution recognizes no membership of the Bank Board arising solely and directly by operation of statute without presidential appointment under Article 62(k). Equally unconstitutional is the idea, advanced in the petitioners' reply, that under that article the President appoints only the other four Bank Board members ‘remaining’ after appointment of the Governor and two Vice-Governors. That contradicts the cited constitutional article, under which the President appoints not merely some but all Bank Board members without a countersignature requirement.

The petitioners' interpretation restricts the constitutionally established appointment power in three cases, and does so through interpreting an ordinary statute which, on their view, makes Article 62(k) inapplicable to appointment of the Governor and Vice-Governors and applicable only to ‘the other four members of the Bank Board.’ It must also be added that Article 63(2) is intended to establish the possibility and conditions of potentially expanding presidential powers, not restricting them. This is reflected in its formulation allowing the President also to exercise powers—that is, additional, new powers—not expressly specified in a constitutional act but conferred by statute.

Article 98(2) of the Constitution also contradicts the petitioners' interpretation. In the field of presidential appointment powers, it entrusts the implementing CNB Act only with regulating ‘further details.’ An example is the statutory provision that the Bank Board consists of the Governor, two Vice-Governors, and four other members. Making the Prime Minister's countersignature obligatory for appointment of three of seven Bank Board members is in no sense a detail; it substantially restricts the President's constitutional rights guaranteed by Article 62(k). Since Article 98(2) must also be understood as a constitutionally prescribed framework that the implementing CNB Act may not exceed, the attempt to derive a countersignature requirement from that Act's text must be called unconstitutional: it regulates no detail but makes a fundamental change of constitutional significance.

Although the Prime Minister and the Government maintain in principle that appointment of the CNB Governor and Vice-Governors is subject to countersignature by the Prime Minister or a Government member authorized by him, they actually challenge as unconstitutional and invalid only the appointment of the Governor and one Vice-Governor, leaving unchallenged the same appointment method, without countersignature, for the other current Vice-Governor. They thereby introduce arbitrariness into the rule of law. In the Court's view, continued parallel coexistence of two different appointment systems, under which one present Vice-Governor needed the Prime Minister's countersignature and another did not, would likewise be incompatible with the principles of the rule of law.

The Court also found unfounded the objection that, before appointing the two Bank Board members Governor and Vice-Governor, the President should have removed them from their previous Board offices. The change of offices occurred during both members' six-year terms, and none of the conditions in section 6(6) of the CNB Act, without which removal is unavailable, had been met. The Act's entire conception confirms the Constitution's intention to establish the CNB as an institution independent of Government in performing its principal task. If removal of Bank Board members were extended to these internal changes within the Board, it would be subject to Government consent and thus become a factor jeopardizing the Board's independence from Government.

Given these constitutional and statutory arrangements, the Court must approve the method by which, on 29 November 2000, the President appointed Zdeněk Tůma Governor ‘as an existing member of the Bank Board of the Czech National Bank,’ with the proviso that ‘his previous office as Vice-Governor of the [bank name corrupt in the source: “Cnarodni banky”] terminates on this date.’ Likewise, appointing Luděk Niedermayer Vice-Governor without removing him as a Bank Board member is a constitutionally and legally entirely appropriate solution. His appointment, too, did not start a new six-year term of office.

The decisive provision for assessing this question is Article 62(k), which defines the Bank Board as an undifferentiated aggregate of all its members, without specifying differences in their positions. Only the lower-ranking CNB Act provides that all these Board members are appointed for six years and that there are seven of them: the Governor, two Vice-Governors, and ‘four other members.’ Where the statute provides for appointment for a fixed period, namely six years in total, that period may not be exceeded. During that term the statute makes no distinction between Bank Board members.

The Bank Board is a collegiate governing body that decides collectively and in which the Governor is only ‘primus inter pares.’ If someone not yet a Board member were appointed Governor, that appointment would start a six-year term. But if an existing Board member who has already served part of the six-year membership term advances to Governor, appointment creates neither entitlement to a new six-year ‘governor's’ term nor the possibility of formal removal under section 6(6) of the CNB Act, which exhaustively specifies the grounds for removal. Under that provision, a Bank Board member may be removed only following final conviction of a criminal offense, if the Board determines that the member has lost the ability to perform the office, or at the member's own request submitted to the Board. A member may also be removed upon assuming an office specified in subsection 5. None of these statutory conditions was met in the disputed case.

For all the foregoing reasons, the Constitutional Court decided under section 124(1) of Act No. 182/1993 Coll., on the Constitutional Court, that the President was competent to issue the decisions as he did in the matter specified in the petition instituting this dispute over powers. It therefore dismissed the petition of the Prime Minister and the Czech Government.

III. Separate opinions 1. Joint dissenting opinion of Judges V. Güttler, M. Holeček, I. Janů, Z. Kessler, and J. Malenovský on the operative part

We believe the Constitutional Court should have declared that the President's decisions of 29 November 2000 appointing the CNB Governor and Vice-Governor require the countersignature of the Prime Minister or a Government member authorized by him to be valid. We therefore disagree with the operative part of the Plenum's judgment, which rests on at least two mistaken premises.

1. The judgment's reasoning repeatedly discredits the legal view of the Government and its Prime Minister by asserting that it interprets the Constitution through an ordinary statute, which is impermissible. In fact, there is no qualitative difference between the parties' positions in this respect. Both start from Article 62(k), under which the President appoints CNB Bank Board members, but whose wording does not expressly mention the CNB Governor and Vice-Governors. Each party draws different legal consequences from that absence of express reference.

The Government considers that, as a result, appointment of Bank Board officeholders falls under Article 63(2). The President, by contrast, infers that their appointment is implicitly, though not explicitly, included in Article 62(k), making Article 63(2) inapplicable. Both parties must invoke ordinary statutes, especially the CNB Act, to establish or refute the proposition that appointing Bank Board officeholders is a separate, new presidential power. The judgment thus rests on an uneven critical approach that could not provide a sound starting point for the Court's decision.

2. Parts of the judgment's reasoning suggest that the majority of the Plenum believes the constitution-maker intended to guarantee CNB independence by enabling a ‘President standing above political parties’ to decide the Bank Board's personnel while preventing any intervention by a politically aligned Government. This view plainly perpetuates and absolutizes a subjective perception of the current factual situation, rather than correctly reflecting the constitutional legal position. Under the Constitution, Parliament elects the President. The legislature is a ‘party-political’ body. It is therefore difficult, without more, to conclude that its choice will regularly produce a ‘nonpartisan’ President.

If the premise of an invariably nonpartisan President is wrong, so is the conclusion that the President will in all circumstances sufficiently guarantee CNB independence. Genuine independence cannot, by definition, be achieved by tying the CNB to a single constitutional body, but only through consistent mutual checks and controls among different constitutional bodies operating within a democratic separation of powers, the foundation of all modern democratic constitutions.

The Czech constitution-maker could have intended nothing else. This interpretation of its intention leads us to believe that the Constitution, together with the CNB Act, meant to create a system of checks and controls between the President and the Government in appointing the CNB's highest officeholders. Only such a system encourages the constructive cooperation and interaction among constitutional bodies that are vital to a democratic state. Certain Government checks and controls over the President are needed because the President appoints a majority of Bank Board members without any Government participation; may appoint as Governor and Vice-Governors persons whose professional or other qualifications have not been tested by previous service in CNB management (section 6(3) of the CNB Act); and is subject to no prescribed term for the offices of Governor and Vice-Governor. * * *

Like other Constitutional Court judges, we consider that no democratic constitutional maxim, whether written or unwritten,General constitutional custom provides that the power to appoint members of a body ipso facto entails the power to appoint its officeholders. In the absence of such a maxim, the legislature must be entitled to fill the space left by the Constitution with its own rules for appointing those officeholders. If the legislature entrusted appointment of Bank Board officeholders to the President, that is a power conferred by statute, not by the Constitution. Article 63(2) must therefore apply, making appointment of the Governor and Vice-Governors subject to countersignature.

We do not consider it productive to examine in greater detail whether the Governor is a ‘single-person authority with independent decision-making power.’ Rather, what matters is the Governor's position as an officeholder who represents the CNB externally in relation to other constitutional bodies. Relations between the CNB and the Government are decisive here. The performance of the CNB's constitutional function directly affects the Government's activities. The Constitution implicitly, and the CNB Act expressly in sections 9–11, regulate forms of cooperation between Government and CNB. The Government therefore has a legitimate interest in ensuring that this cooperation works smoothly.

The constitutional idea of checks and controls among constitutional bodies means that the Government's duty to cooperate with the CNB cannot, without more, imply a duty to accept anyone whatsoever as its principal partner in that cooperation, including a person unilaterally designated by another constitutional body, the President. Without an express constitutional rule to the contrary, a relationship of inequality between two constitutional bodies cannot be presumed.

What matters is not that, in dealings with the Government, the Governor must respect the Bank Board's view and ‘convey its position,’ as the judgment's reasoning states. Rather, it is that the Governor is a person who enters the sphere reserved to Government powers—for example, attending its meetings in an advisory capacity—and who would be imposed on the Government by another constitutional body's unilateral decision.

Relations between the Government and the President are in one respect comparable to relations between states. In the latter case, the interacting entities are fundamentally equal in the full sovereignty inherent in states. In the former, the entities are fundamentally equal because each exercises part of state sovereignty in its own right and independently of other entities. A parallel can therefore be drawn between these relationships in search of an analogia iuris.

States maintaining diplomatic or consular relations—cooperating in political or nonpolitical areas—need not accept as head of a diplomatic or consular mission, even one merely conveying the state's positions, any person unilaterally imposed by the sending state. The sending state must seek individual agrément or an exequatur, which the receiving state may refuse without giving reasons. A person entering directly into another entity's sphere of authority is thus subject to a special regime. This analogia iuris supports a presumption that appointment of the CNB Governor or Vice-Governor likewise requires countersignature. An express provision could exclude the presumption of equality, but the Constitution contains none.

The part of the judgment's reasoning analyzing and interpreting the origins of Act No. 6/1993 Coll., on the CNB, departs considerably from reality. Like the judgment, we consider that the Czech National Council sitting of 17 December 1992 rejected a proposal to retain the preceding arrangement, under which the President appointed the Governor on the Government's proposal. But that rejection did not concern countersignature, which the previous arrangements did not recognize at all.

The record of those proceedings must be given in its full context. Deputy A. Röschová stated: ‘I have compared Article 62 of the Constitution, where subparagraph (k) says that the President appoints members of the Bank Board of the Czech National Bank; there is nothing else there. In the chapter concerning the Czech National Bank, Article 98 likewise does not say that this is on anyone's proposal or with anyone's consent, as is the case, for example, with Constitutional Court judges or the President and Vice-President of the Supreme Audit Office.’ Deputy M. Výborný added: ‘If, therefore, the Constitution does not in any of its provisions restrict the President's appointment power in any way—as, for example, it does in appointing the President of the Supreme Audit Office—it would, in the opinion of the members of the Constitutional and Legal Affairs Committee, unanimous as I have said, be unconstitutional not to accept Deputy Röschová's proposal and to specify in section 6(2), (3), and (4) of the Act on whose proposal the President appoints the Governor, Vice-Governors, and other members of the Bank Board.’

Taken as a whole, the two quotations demonstrate that the Czech National Council would have regarded it as unconstitutional for the President to appoint the Governor and Vice-Governors on another constitutional body's proposal, as with the Supreme Audit Office's President, or with another constitutional body's consent, as with Constitutional Court judges. By contrast, the Council's discussion on 17 December 1992 did not address countersignature, and deputies neither excluded it nor called it unconstitutional. Indeed, since the discussion occurred the day after approval of the Constitution, the deputies must have been aware of its effects on this matter.

Particularly in light of the foregoing arguments, but also because the President is not accountable for the exercise of his office (Article 54(3) of the Constitution), we consider that his appointment power under Article 62(k) must be interpreted restrictively, as not including power to appoint the CNB Governor and Vice-Governors. That power is established by the CNB Act and is therefore subject to countersignature.

The Prime Minister's countersignature of the appointment of the CNB Governor and Vice-Governors naturally does not interfere with the CNB's independence in exercising its constitutional function guaranteed by Article 98. The initiative to appoint Bank Board officeholders comes from the President, not from the Prime Minister. An incoming Government of a new political complexion therefore cannot initiate the appointment process. * * *

No final conclusion is possible without examining whether the subsequent practice of appointing the CNB Governor and Vice-Governors meets the requirements of a constitutional convention orGeneral constitutional custom, more precisely, a constitutional customGeneral constitutional custom. Constitutional customsGeneral constitutional custom undoubtedly supplement a written constitution and, if they satisfy the requirements of law—longstanding practice and a belief in their necessity or legally binding character—can modify the rules in the constitutional text. There is no basis for asserting that the possible existence of constitutional conventionsGeneral constitutional custom is excluded a priori in this case.

No constitutional provision expressly specifies the method of appointing the CNB Governor and Vice-Governors. Prima facie, subsequent practice by constitutional bodies could thus be regarded as a series of generally constitutionally permissible acts potentially leading to a constitutional conventionGeneral constitutional custom praeter constitutionem. In light of the preceding conclusions in this dissent, however, that cannot be so here. A countersignature requirement can be inferred from the Constitution; any divergent constitutional conventionGeneral constitutional custom resulting from a series of appointments without countersignature would therefore have to be a convention contra constitutionem.

Even that possibility cannot be excluded a priori, because constitutional custom or convention may be a rule of constitutional law capable in principle of derogating from any written constitutional rule. But the quantity and quality of practice needed to create a custom contra constitutionem must be substantially greater than that needed for a custom praeter constitutionem. Custom-forming practice in the former case does not enter a legally neutral space as a concentrated expression of generally permissible conduct, as practice praeter constitutionem does; it must overcome the sense that the constitutionally valid requirement of countersignature is binding.

Practice, as the material element of constitutional convention, must be longstanding, uniform, and continuous. It is already debatable whether, in merely eight years since 1993, one could hypothetically establish the emergenceGeneral constitutional custom of such a conventionOpinio juris, capable of derogating from a written constitution regarded as an exceptionally stable source of law, amendment of which is subject to especially demanding conditions. Constitutional convention crystallizes in the conduct of the constitutional bodies concerned. Uniformity and duration must mean that the convention is formed by constitutional bodies regardless of changes over time in their actual membership. Conversely, the convention's significance is somewhat diminished if only a constitutional body of unchanged composition has participated in its supposed formation, particularly a single-person body, as is the case here with the President.

The particular duration over which practice develops as the material element of constitutionalLongus usus convention depends in any event on its degree of uniformity. That requirement, too, is unmet. In the Constitution's initial period, two Vice-Governors, J. Vít and P. Kysilka, were appointed with express reference to Article 63(2), and thus with the Prime Minister's countersignature (instruments of appointment of 12 February 1993, ref. no. 988/93). It is true that subsequent Governors and Vice-Governors were appointed without countersignature, but the volume of this subsequent ‘non-countersignatureLongus usus’ practice is plainly insufficient to erase entirely the traces of the earlier countersigned appointments from the Government's legal consciousness, as its present petition indicates.

In assessing custom-forming practice, one must carefully distinguish actual precedents—the conduct of both constitutional bodies before appointing Governors—from various verbal or symbolic expressions by Government members and the Prime Minister, such as statements in Parliament, particular expressions in correspondence, invitations, and so forth. The custom-forming significance of symbols and statements is generally limited. They should not be given importance comparable to conduct directly connected with appointments, as the judgment's reasoning nevertheless does.

The subjective element of constitutional convention—a belief in its legally binding character—is likewise absent. Constitutional bodies would have to follow the convention even when doing so was politically or otherwise disadvantageous. The Prime Minister and the Government's petition concerning appointment of Bank Board officeholders on 29 November 2000 expresses their position that they do not regard their nonparticipation in appointing the Governor and Vice-GovernorsOpinio jurisConstitutional content as legally binding.

Nor does the legislature's adoption of the CNB Act amendment, No. 442/2000 Coll., establish a belief that appointing Bank Board officeholders without countersignature is legally binding. The judgment's reasoning states that it is inconceivable that the legislature, after tying the President's decision to appoint the Governor and Vice-Governors to a prior Government proposal, would also insist on subsequent countersignature by the Prime Minister.

Although a ‘three-stage’ appointment model—Government proposal, presidential appointment, and prime-ministerial countersignature—is certainly somewhat unusual and cumbersome, it is applied without controversy in other Czech cases. An example is the Chair of the Office for the Protection of Competition, appointed by the President on the Government's proposal under section 2(3) of Act No. 2/1969 Coll., whose appointment is subsequently countersigned by the Prime Minister under Article 63(2) of the Constitution.

The judgment's reasoning assesses the Government's conduct in detail, inferring that the Prime Minister and the Government in fact repeatedly and unambiguously acknowledged in the past that the President's power to appoint the CNB Governor and Vice-Governors is not subject to the Prime Minister's countersignature. This assertion can largely be accepted, but it does not alter this dissent's overall conclusion.

The rule of law and legal certainty undoubtedly include a legitimate expectation of continuity in the conduct of legal subjects. This expectation also has a procedural form in the concept of estoppel, borrowed from Anglo-American judicial practice. Under it, a party to a dispute cannot deny a legal regime or principle it previously recognized expressly or implicitly. Estoppel serves certainty in society's legal relations. Courts, however, traditionally treat an estoppel objection very cautiously, ordinarily requiring additional restrictive conditions beyond mere recognition of a particular regime or principle.

It is true that on several occasions the Government tacitly accepted presidential appointments of Bank Board officeholders without the instruments being submitted to the Prime Minister for countersignature. It is also true that the petitioners did not challenge the appointment of the other Vice-Governor, Oldřich Dědek, who remains in office.

In these circumstances, the Prime Minister and the Government's petition may be regarded as surprising and highly unusual in a state governed by the rule of law. Their submission undoubtedly impaired certainty in relations among Czech constitutional bodies, and not only among those bodies.

On the other hand, it is inconceivable for the Constitutional Court to base its operative ruling solely on upholding the other party's estoppel objection. Individual failures by the Prime Minister to require countersignature for a particular Governor or Vice-Governor might suspend, on a single occasion, the effectivenessConstitutional content of the constitutional rule requiring countersignature. They cannot, however, invalidate that rule. Invalidation would require a constitutional custom (constitutional conventionGeneral constitutional custom), which, as this opinion's argument shows, has not arisen.

Since neither the material nor the subjective constitutive element of a constitutional conventionOpinio juris capable of derogating from the Constitution can be established, the conclusion must remain that the President's appointments of 29 November 2000 require the countersignature of the Prime Minister or a minister authorized by him to be valid.

2. Separate opinion of Judges JUDr. Pavel Holländer and JUDr. Vladimír Jurka on the reasoning This separate opinion on the reasoning of the judgment concerning the Prime Minister and the Government's petition in a dispute over the extent of the powers of state bodies, file no. Pl. US 14/2001, rests on the following grounds:

The Constitutional Court's judgment in this case relies on the following arguments: • The relevant provisions of the Czech National Bank Act (section 6) do not create new offices to which the President's appointment power under Article 63(2) would apply. They merely name the positions of individual members of the CNB Bank Board appointed under Article 62(k). For the position to be otherwise, the Governor would have to be a single-person authority, a conclusion for which there are no convincing reasons.

• A further argument employs the method of distinguishing. The judgment rejects comparison with the arrangements for appointing the Constitutional Court's President and judges, the Prime Minister and Government members, and the President and Vice-President of the Supreme Audit Office. Those appointments generally require another body's participation; they are therefore different and incomparable situations or matters.

• Finally, the judgment invokes reductio ad absurdum: the Government's interpretation could lead to refusal of consent to appointing one of the seven Bank Board members Governor, or to appointing as Governor someone not on the Bank Board, requiring an existing member to vacate a place even without statutory grounds for removal.

Decisions made by the President in exercising powers under Article 62 of the Constitution are not subject to countersignature within the meaning of Article 63(3). Decisions under Article 63(1), and decisions exercising statutory powers under Article 63(2), are subject to countersignature under Article 63(3).

Under Article 62(k), the President appoints the members of the Bank Board of the Czech National Bank. Section 6(1) of the Czech National Bank Act provides for a seven-member Bank Board consisting of the Governor of the Czech National Bank, two Vice-Governors, and four other members of the Bank Board of the CzechUnrelated / insufficient National Bank. Under subsection 2, the Governor, Vice-Governors, and other members are appointed and removed by the President.

Under sections 7, 8, 11, and 50 of the Czech National Bank Act, the Governor may act in the Bank's name, chairs Bank Board meetings, has the casting vote in the event of a tie, attends Government meetings in an advisory capacity, and may release Bank employees from their duty of confidentiality. The CNB Governor is not a single-person authority; he heads a collegiate body and has the prerogatives typical of that role. The Czech National Bank Act entrusts his selection or appointment to the President (section 6(2)).

If we accept the interpretation that the Governor's office is not established by statute but merely names the position of a Bank Board member, as does the Vice-Governor's office, and that appointment therefore follows directly from Article 62(k), the necessary consequence is that section 6(2) of the Czech National Bank Act is redundant. On that view, any statutory provision selecting the Governor by election from among Board members, by lot, or otherwise would necessarily conflict with Article 62(k). We do not think this is so, or that Article 62(k) can sustain that conclusion.

Democratic institutional thought has neither formulated nor accepted a maxim under which power to select a body's members automatically and without more entails power to select its internal officeholders. If no such maxim exists in written or unwritten form, there is necessarily an open space for the legislature to regulate selection of those officeholders. If the legislature entrusts selection to the President rather than, for example, to the body's members, that is a presidential power established by statute, not by the Constitution, and its exercise is subject to countersignature under Article 63(3).

This conclusion does not appear undermined by pointing to differences between appointment of CNB Bank Board members and appointment of the Constitutional Court's President and judges, the Prime Minister and Government members, or the President and Vice-President of the Supreme Audit Office, where another body's participation is generally required. Whether these cases differ fundamentally is itself doubtful. For example, the President appoints Constitutional Court judges with the Senate's consent, but appoints the Court's President without it. Hypothetically, if the power to appoint the Court's President were omitted from Article 62 and presidential appointment were regulated only by the Constitutional Court Act, the situation envisaged in Article 63(2) and (3) would arise: a presidential power established by statute and subject to countersignature. Yet the Constitutional Court President's position, in terms of functions within a body constituted by the President, is very similar to that of the CNB Governor.

In our view, the objection based on possible consequences of failure to agree on a Governor from among Bank Board members disregards the necessary systemic cooperation of democratic constitutional bodies in many situations envisaged by the Constitution. The same argument could call into question the actual exercise of other presidential powers requiring countersignature, such as calling elections to the Chamber of Deputies and Senate, or appointing judges and heads of diplomatic missions, and so on.

For all these reasons, it may be considered that, prima facie, under the Constitution and the Czech National Bank Act, presidential appointment of the CNB Governor and Vice-Governors is subject to countersignature by the Prime Minister or a minister authorized by him.

Since, however, two interpretations of the relevant, specific constitutional provision confront one another, each with its own rationale and neither properly considered contra constitutionem, it is evidently appropriate to favor the interpretation supported by constitutional practice, and thus to respectLongus usus the constitutional tradition apparently already established in this wayLongus usus.

The Constitutional Court decided this case eight and a half years after the Constitution and the Czech National Bank Act took effect. In this connection, one cannot overlook that all previous presidential appointments of Governors took place without countersignature, as did all previous appointments of Vice-Governors, with two exceptions. Nor can one overlook that in none of those cases did the Government or Prime Minister petition the Constitutional Court to institute a dispute over powers with the President. Finally, it must also be recognized that the sole reason for adopting the new arrangement appointing the CNB Governor and Vice-Governors on the Government's proposal was the general belief that countersignature was absent, held by deputies voting for the amendment to the CNB Act and for the constitutional amendment submitted to the Chamber of Deputies on 17 September 1999 by a group of deputies: Ivan Langer, Petra Buzková, Eva Dundáčková, Zdeněk Jičínský, Jitka Kupčová, and Jan Zahradil.

The fundamental question, in our view, is whether constitutional conventionsGeneral constitutional custom praeter constitutionem can arise within a system of written constitutional law and, if so, what conditions must be met to establish their existence.

The Constitutional Court has already touched on this issue in case Pl. US 33/97, stating: ‘A modern democratic written constitution is a social contract by which the people, representing constituent power (pouvoir constituant), constitute themselves as a single political or state body and establish the relationship of the individual to the whole and a system of institutions of power, or state institutions. A document institutionalizing a system of fundamental, generally acceptedOther constitutional principle values and shaping the mechanism and process for forming legitimate decisions of public power cannot exist outside a publicly accepted context of values, conceptions of justice, and ideas about the meaning, purpose, and functioning of democratic institutions. In other words, it cannot operate without a minimum consensus about values and institutions. For law, this entails that fundamental legal principles and conventions are also sources of law generally and of constitutional law, even in a system of written law.’

‘… Acceptance of sources of law beyond written law, especially general legal principles, raises the question of how they can be ascertained. In other words, it raises the question whether their formulation is arbitrary or whether procedures capable of a degree of objectification can be established for formulating them. … A typical example of the possibility of identifying even unwritten legal rules of human conduct is customary law. A legal custom requires a general belief in the need to observe a general rule of conduct (opinio necessitatis), together with observance over a long period (usus longaevus, or longaLongus usus consuetudo).’

We consider the emergence of constitutional conventionsGeneral constitutional custom praeter constitutionem a regular and natural part of the operation of democratic constitutional systems within continental European legal culture, that is, the tradition of written constitutions and written law. Contemporary constitutional case law has also taken account of this phenomenon. As an illustrationUnrelated / insufficient, we mention only the Federal Constitutional Court's judgment BVerfGE 72, 189, which accepted activism praeter constitutionem by the Mediation Committee between the Bundestag and Bundesrat as having the statusGeneral constitutional custom of a constitutional conventionGeneral constitutional custom.

In this case, it is necessary to test whether the constitutive elements of constitutional convention, analogous to those of legal custom or convention, are fulfilled. We believe a general conviction (opinio necessitatis) that the President may appoint the CNB Governor and Vice-Governors without countersignature can be shown both by the absence of Government attempts to bring earlier appointments before the Constitutional Court as a dispute over powers and by the intention behind the amendment of Act No. 6/1993 Coll. adopted as Act No. 442/2000 Coll. The same is true of the intention behind the constitutional amendment submitted to the Chamber of Deputies on 17 September 1999 by deputies Ivan Langer, Petra Buzková, Eva Dundáčková, Zdeněk Jičínský, Jitka Kupčová, and Jan Zahradil.

By restricting the President's authority in section 6(3) of the CNB Act to appointment of the Governor and Vice-Governors only on a Government proposal, the amendment necessarily assumed that exercise of this presidential power was not subject to countersignature. Otherwise, if there had been a general conviction that the Prime Minister or an authorized minister could countersign those appointments, the amendment would have had no reasonable purpose.

The record of the first reading of that constitutional amendment on 10 November 1999 shows that Deputy Prime Minister JUDr. Pavel Rychetský expressed the following view: ‘I consider it my duty, on behalf of the Government, to explain the position that the Government submitted within the statutory period on the proposed constitutional amendment. As you know, the Government's position is favorable … It is further proposed that where the President has power to appoint certain officials—I point out, incidentally, that these are officials of the judiciary or state administration—he should do so on a proposal. I would note that the Constitution is designed so that the President forms part of the executive and is therefore not accountable for his acts, for which the Government is responsible. It is therefore logical that the Government must, either through countersignature or, where there is no countersignature, as in these cases, have the possibility of making proposals so that it can bear responsibility for their outcome.’

That view, commenting on the proposed changes to Article 62, thus conceptually treats the possible links between presidential decision-making and Government as mutually exclusive alternatives: countersignature or decision on a Government proposal. In other words, it excludes combining them. This purpose of the proposed changes to selection of the CNB Governor and Vice-Governors, subsequently implemented by Act No. 442/2000 Coll., is unaffected by the method of selecting the Chairs of the Czech Statistical Office and the Office for the Protection of Competition, which combines both mechanisms (Acts Nos. 89/1995 Coll. and 272/1996 Coll., amending Act No. 2/1969Legal citation Coll.). The intention behind Acts Nos. 89/1995 Coll. and 272/1996 Coll. differed from that behind Act No. 442/2000 Coll.

Whereas Act No. 442/2000 Coll. responded to a general conviction that countersignature was absent and introduced another form of Government participation in appointing the CNB Governor and Vice-Governors, the arrangements for the Chair of the Czech Statistical Office, and subsequently the competition authority's Chair, responded to previous rules entrusting appointment of the Statistical Office's Chair to the Presidium of the Czech National Council. The question whether countersignature and appointment on a proposal were cumulative or mutually exclusive was not considered at all.

The strength of the general conviction concerning the intention to introduce presidential appointment of the CNB Governor and Vice-Governors on a Government proposal reached the degree of consensus constitutionally required to adopt a constitutional act. In the Chamber of Deputies' vote on 7 December 2000 after the President returned the bill, 122 of the 169 deputies present voted for the amendment. Under Article 39(4), that was more than three-fifths of all deputies: the majority required to adopt a constitutional act.

Long-term acceptance of a spontaneously formedGeneral constitutional custom rule (conventionLongus usus), that is, the longa consuetudo requirementLongus usus, is in our convictionUnrelated / insufficient fulfilled here not only by the duration of existing practice but also by the frequency of appointments. The two exceptions—two countersigned Vice-Governor appointments—cannot alter that fact. That these areLongus usus departures from established practice is shown particularly by the general conviction reflected in the intention behind the adopted CNB Act amendment, No. 442/2000 Coll.

Finally, in accepting the possibility of recognizing alsoGeneral constitutional custom a constitutionalGeneral constitutional custom convention as a source of constitutional law, two important points must be mentioned. First is the immense responsibility of all constitutional bodies in applying the Constitution: they must recognize the consequences of their actions not merely in the context of the matter currently being decided but also for the formation of the country's constitutional system. Second is the limit of the possible acceptance of constitutional conventions. That limit is in principle set by Article 9(2). From that perspective, the formationGeneral constitutional custom of a constitutional conventionGeneral constitutional custom in appointing the CNB Governor and Vice-Governors cannot be said to impair any essential requirement of a democratic state governed by the rule of law.

For these reasons, we believe that, since the ConstitutionLongus usus took effect, constitutional practiceLongus usus has developed a constitutional conventionLongus usus praeter constitutionem under which the President appoints the CNB Governor and Vice-Governors without the countersignature of the Prime Minister or a minister authorized by him. In our view, this constitutionalOther constitutional principle position can now be changed only by a decision of the constitution-maker, namely an amendment to the Constitution.

Guided by these considerations, the authors of this separate opinion voted for the judgment dismissing the Prime Minister and the Government's petition concerning the validity of the President's decisions of 29 November 2000 appointing Zdeněk Tůma Governor and Luděk Niedermayer a Vice-Governor of the Czech National Bank, and confined their disagreement to the reasoning.

By way of incidental observation, the authors also consider it necessary to address certain procedural issues: • The Constitutional Court Act sets no time limit for a petition in a dispute over powers concerning a decision already issued within the meaning of section 125. Nor has the Constitutional Court's case law derived such a time limit by procedural analogy—for example, to section 72(2)—or from the nature of the matter, such as a requirement to file without delay. In the first place, this creates inequality within the legal order.

In civil proceedings, an action to set aside a judgment for fundamental procedural defects on the ground that the decision concerned a matter outside the court's jurisdiction (section 229(1)(a) of the Code of Civil Procedure) must be brought within three months of service of the decision (section 234(1)). In criminal proceedings, an appeal alleging a breach of law to the accused's detriment is limited to six months from the challenged decision's becoming final (section 272 of the Code of Criminal Procedure).

The absence of a time limit for petitions in disputes over the extent of powers involving an already issued disputed decision creates uncertainty in legal relations. The risks fall primarily not on the parties to the dispute but on the natural and legal persons whose rights have been determined. We note that the German Federal Constitutional Court Act sets a six-month time limit for an equivalent petition. We believe nothing prevents the Constitutional Court from developing such a limit through interpretation, from the nature of the matter, and requiring petitions in disputes over powers that may result in annulment under section 125 of the Constitutional Court Act to be filed without delay.

• We consider that proceedings under Division Eight of Chapter Two of the Constitutional Court Act require an actual dispute over powers, not a simulated one intended to obtain an abstract interpretation of the Constitution. It follows that filing a petition in such a dispute is incompatible with de facto recognition of a legal act which, according to the petitioner, was issued in violation of constitutionally allocated powers and must therefore be legally null and void in its effects. On this point in the present context, see F. Weyr, Czechoslovak Constitutional Law, Prague, 1937, p. 190.

We believe the Government's petition suffers from this defect. Despite challenging Zdeněk Tůma's appointment as CNB Governor and Luděk Niedermayer's as Vice-Governor, the Government recognized those appointments through its actual conduct, as shown, for example, by the Finance Minister's correspondence and invitations to Government meetings—that is, application of section 11(2) of Act No. 6/1993 Coll., as amended—and similar acts.

3

Judgment of the Constitutional Court of the Russian Federation of December 11, 1998, No. 28-P, ‘On the interpretation of the provisions of Article 111, part 4, of the Constitution of the Russian Federation’

Judgment of the Constitutional Court of the Russian Federation of December 11, 1998, No. 28-P

‘On the interpretation of the provisions of Article 111, part 4, of the Constitution of the Russian Federation’

In the name of the Russian Federation

The Constitutional Court of the Russian Federation, composed of President M. V. Baglay and Justices N. V. Vitruk, G. A. Gadzhiev, Yu. M. Danilov, L. M. Zharkova, V. D. Zorkin, A. L. Kononov, V. O. Luchin, T. G. Morshchakova, V. I. Oleynik, Yu. D. Rudkin, N. V. Seleznev, A. Ya. Sliva, V. G. Strekozov, O. S. Khokhryakova, B. S. Ebzeev, and V. G. Yaroslavtsev,

with the participation of the representatives of the State Duma, which submitted the request to the Constitutional Court of the Russian Federation—Deputy N. I. Shaklein and Doctors of Law V. V. Lazarev and V. M. Syrykh—

acting pursuant to Article 125, part 5, of the Constitution of the Russian Federation; Article 3, part one, paragraph 4, and parts two and three; Article 21, part two, paragraph 2; and Articles 36, 74, and 105 of the Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation’,

examined in a public hearing the case concerning the interpretation of the provisions of Article 111, part 4, of the Constitution of the Russian Federation.

The proceedings were initiated by the State Duma's request for an interpretation of the provisions of Article 111, part 4, of the Constitution of the Russian Federation.

Having heard the report of Justices Rapporteur V. I. Oleynik and B. S. Ebzeev, the explanations of the applicant's representatives, the expert opinions of Doctor of Law A. S. Pigolkin and Candidate of Philological Sciences Yu. A. Safonova, and the statement of M. A. Mityukov, the plenipotentiary representative of the President of the Russian Federation before the Constitutional Court of the Russian Federation, who was invited to the hearing, the Constitutional Court of the Russian Federation established the following:

1. Under Article 111, part 4, of the Constitution of the Russian Federation, after the State Duma has rejected the nominees submitted for Chairman of the Government of the Russian Federation three times, the President of the Russian Federation appoints the Chairman of the Government of the Russian Federation, dissolves the State Duma, and calls new elections.

The State Duma requests an interpretation of this constitutional provision, specifically clarification of whether the President of the Russian Federation may resubmit a nominee for Chairman of the Government of the Russian Federation whom the State Duma has rejected, and of the legal consequences if the State Duma rejects the same nominee for that office three times.

The State Duma considers that, within the meaning of Article 111 and the related provisions of Articles 83(a), 84(b), and 103, part 1(a), of the Constitution of the Russian Federation, the President of the Russian Federation may not repeatedly submit the same nominee for Chairman of the Government of the Russian Federation. It maintains that the President of the Russian Federation may dissolve the State Duma only after it has rejected three different nominees whom he has submitted for Chairman of the Government of the Russian Federation. In other words, in the applicant's view, ‘nominees submitted’ in Article 111, part 4, of the Constitution of the Russian Federation means different individuals.

2. On a literal reading of Article 111, part 4, of the Constitution of the Russian Federation, considered in conjunction with the other provisions of that Article, the phrase ‘rejection three times of the nominees submitted for Chairman of the Government of the Russian Federation’ may mean either rejecting a nomination to the office three times or rejecting, on three occasions, the individuals submitted for appointment. It follows that the text of Article 111 of the Constitution of the Russian Federation does not, in itself, exclude either of these two possibilities.

The constitutional meaning of the provisions of Article 1Legal citation11, part 4, of the Constitution of the Russian Federation can and must be determined in light of the objectives pursued by the constitutional legislator and embodied in those provisions.

The legal rationale of Article 111 of the Constitution of the Russian Federation, read together with Articles 83(a), 84(b), and 103, part 1(a), is to prevent confrontation between the legislative, executive, and judicial branches into which state power in the Russian Federation is divided (Article 10 of the Constitution of the Russian Federation). Such confrontation is incompatible with the fact that the multinational people of the Russian Federation are the sole source from which those branches derive and the bearer of the sovereignty they embody (preamble; Article 3, parts 1 and 2).

These fundamental provisions, which underlie the organization of power in a democratic state governed by the rule of law, also explain why the State Duma's consent is required for the appointment of the President's nominee for Chairman of the Government of the Russian Federation.

In defining the conditions and procedure for appointing the Chairman of the Government of the Russian Federation, the Constitution of the Russian Federation provides means of overcoming possible disagreements between the branches of government, so as to prevent delays in forming the Government of the Russian Federation and the consequent obstruction of its work as one of the institutional elements of the constitutional order of the Russian Federation (Article 11, part 1).

3. In establishing the functions and powers of federal organs of state power, the Constitution of the Russian Federation proceeds from the nature of their constitutional relationships. Under the Constitution of the Russian Federation, the President of the Russian Federation is the head of state (Article 80, part 1).

By virtue of his position within the system of separation of powers, the President of the Russian Federation, as head of state, determines the basic directions of the state's domestic and foreign policy in accordance with the Constitution of the Russian Federation and federal laws (Article 80, part 3); implementation of that policy is entrusted to the Government of the Russian Federation (Article 114, part 1).

This explains the powers of the President of the Russian Federation to form the Government of the Russian Federation, determine the directions of its work, and supervise it (Articles 83(a), (b), (c), and (e); 111; 112; 115, part 3; and 117 of the Constitution of the Russian Federation), as well as the President's constitutional responsibility for the Government's activities.

The President's role in determining the membership of the Government of the Russian Federation, including selecting a nominee and appointing the Chairman of the Government of the Russian Federation, also follows from this.

It follows from Article 111, part 4, of the Constitution of the Russian Federation, read together with the other constitutional provisions concerning the status of the head of state, that choosing the nominee for Chairman of the Government of the Russian Federation to be submitted to the State Duma is the prerogative of the President of the Russian Federation. The Constitution of the Russian Federation places no restriction on this right and allows the President of the Russian Federation to determine how to exercise it: to propose the same candidate twice or three times, or to submit a new candidate on each occasion.

The State Duma, in turn, participates in the appointment of the Chairman of the Government of the Russian Federation by granting or withholding consent to the appointment of the proposed nominee. The Constitution of the Russian Federation provides no basis for legally restricting these powers of the participants in this process.

4. The objective of affirming civic peace and accord, proclaimed in the preamble to the Constitution of the Russian Federation, also entails the need for the coordinated functioning and interaction of organs of state power, which the President of the Russian Federation ensures under the Constitution of the Russian Federation (Article 80, part 2). Any other approach fails to meet the constitutional purpose of state power and jeopardizes the stability of the constitutional order of the Russian Federation as a democratic state governed by the rule of law.

Article 111 of the Constitution of the Russian Federation, read together with Articles 10; 11, part 1; 80, parts 2 and 3; 83(a); 84(b); 103, part 1(a); 110, part 1; and 115, part 1, which define the position of the Government of the Russian Federation within the system of state power and the conditions and procedure for appointing its Chairman, likewise requires coordinated action by the President of the Russian Federation and the State Duma when exercising their powers in the procedure for appointing the Chairman of the Government of the Russian Federation.

This procedure therefore presupposes a search for agreement between them to resolve differences over the nominee for that office. This can be achieved through forms of interaction provided for by, or compatible with, the Constitution of the Russian Federation that develop in the exercise of the head of state's powers and in parliamentary practice.

The practice of applying Article 111 of the Constitution of the Russian Federation reveals various approaches to exercising the powers it establishes. These include approval of the proposed nominee for Chairman of the Government of the Russian Federation on the very first submission, submission of the same candidate three times, and the use of conciliation procedures after a candidate has been rejected twice. Nevertheless, the future development of a constitutional customGeneral constitutional custom cannot be ruled out, including one based onGeneral constitutional custom any single form of interaction between the head of state and the State Duma that is permitted by Article 111, part 4, of the Constitution of the RussianLegal citation Federation and serves the objectives of the stable functioning of the constitutional order, taking the historicalUnrelated / insufficient context into account.

5. Within the meaning of Article 111, part 4, of the Constitution of the Russian Federation, the mandatory consequences of the State Duma's rejection, on three occasions, of the nominees submitted by the President of the Russian Federation for Chairman of the Government of the Russian Federation—regardless of which possible method of submitting candidates was used—are the appointment by the President of the Russian Federation of the Chairman of the Government of the Russian Federation, the dissolution of the State Duma, and the calling of new elections. This constitutional means of resolving a disagreement between the President of the Russian Federation and the State Duma through the mechanism of free elections accords with the foundations of the constitutional order of the Russian Federation as a democratic state governed by the rule of law.

On the foregoing grounds, and pursuant to Article 71, parts one and two, and Articles 72, 74, 75, and 106 of the Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation’, the Constitutional Court of the Russian Federation rules:

1. The provision of Article 111, part 4, of the Constitution of the Russian Federation concerning the State Duma's rejection, on three occasions, of the nominees submitted for Chairman of the Government of the Russian Federation, read together with the other provisions of that Article, means that, when submitting nominations to the State Duma for the office of Chairman of the Government of the Russian Federation, the President of the Russian Federation may submit the same candidate twice or three times, or submit a new candidate on each occasion.

The right of the President of the Russian Federation to propose a particular nominee and insist on approval, on the one hand, and the right of the State Duma to consider the nominee submitted and decide whether to consent to the appointment, on the other, must be exercised with due regard for the constitutional requirements of coordinated functioning and interaction among the participants in this process, including through forms of interaction provided for by, or compatible with, the Constitution of the Russian Federation that develop in the exercise of the head of state's powers and in parliamentaryUnrelated / insufficient practice.

After three rejections of the nominees submitted by the President of the Russian Federation for Chairman of the Government of the Russian Federation—whether a new candidate was submitted each time or the same candidate was submitted twice or three times—the State Duma must be dissolved.

2. Under Article 106 of the Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation’, the interpretation given by the Constitutional Court of the Russian Federation in this Judgment is official and binding on all.

3. Under Article 79, parts one and two, of the Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation’, this Judgment is final, is not subject to appeal, enters into force immediately upon its pronouncement, and has direct effect.

4. Under Article 78 of the Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation’, this Judgment must be published without delay in the Collection of Legislation of the Russian Federation and Rossiyskaya Gazeta. It must also be published in the Bulletin of the Constitutional Court of the Russian Federation.

Constitutional Court of the Russian Federation

Separate opinion of Justice N. V. Vitruk of the Constitutional Court of the Russian Federation in the case concerning the interpretation of the provisions of Article 111, part 4, of the Constitution of the Russian Federation

Article 111, part 4, of the Constitution of the Russian Federation defines the powers of the President of the Russian Federation after the State Duma has rejected, on three occasions, the nominees submitted for Chairman of the Government of the Russian Federation.

In the State Duma's view, the uncertainty lies in the fact that the text of Article 111 of the Constitution of the Russian Federation does not clearly answer whether, after the State Duma rejects a candidate for Chairman of the Government of the Russian Federation, the President of the Russian Federation must submit a different (new) candidate each time, or may submit the same nominee a second and even a third time.

To answer this question, the provision in Article 111, part 4, of the Constitution of the Russian Federation must be considered not only in the context of Article 111 as a whole, but also in conjunction with the provisions of other articles of the Constitution of the Russian Federation. Those provisions define the place and role of the President of the Russian Federation as head of state and of the State Duma as a representative (legislative) organ of state power within the mechanism (system) through which state power operates, particularly in their interaction when appointing the Chairman of the Government of the Russian Federation and forming the Government of the Russian Federation as a whole.

Under Article 10 of the Constitution of the Russian Federation, the operating principles of the mechanism (system) of state power in the Russian Federation are the division of unified state power into legislative, executive, and judicial branches (each acting independently within its own sphere of competence), and interaction (cooperation) between those branches to attain common constitutional objectives and tasks, such as ensuring the stability of the constitutional order and human and civil rights and freedoms. The President of the Russian Federation, as head of state and guarantor of the Constitution of the Russian Federation, ensures the coordinated functioning and interaction of organs of state power in the manner prescribed by the Constitution of the Russian Federation (Article 80, part 2).

In giving the President of the Russian Federation consent to appoint the Chairman of the Government of the Russian Federation, the State Duma acts as a check, a certain counterweight. It cannot, however, serve as an instrument of pressure, since the number of times it may reject nominees is limited.

In proposing nominees for the office of Chairman of the Government of the Russian Federation, the President must seek and reach agreement with the State Duma by selecting an appropriate nominee. The methods (forms) of seeking agreement may vary. It is precisely to ensure such interaction that the Constitution of the Russian Federation establishes corresponding time limits for both the President of the Russian Federation and the State Duma (Article 111, parts 2 and 3).

The literal meaning of Article 111, read as part of a system with the other provisions of the Constitution of the Russian Federation, yields the following general rule: whenever the State Duma rejects a nominee for Chairman of the Government of the Russian Federation, the President of the Russian Federation must submit a new nominee.

If the State Duma does not give its consent, further efforts by the President of the Russian Federation and the State Duma to agree on a new nominee are necessary. The practice of using methods (forms) of reaching agreement on a nominee for Chairman of the Government of the Russian Federation may in future lead to the formation of a constitutional custom,Opinio juris having the force of a constitutionalOpinio juris norm.

The procedure for reaching agreement on a nominee for Chairman of the Government of the Russian Federation may be established in federal law in the formUnrelated / insufficient of procedural rules and reflected in the Rules of Procedure of the State Duma.

When the President of the Russian Federation submits the same nominee twice, and all the more so three times, the State Duma is deprived of the right to choose independently guaranteed to it by Articles 10 and 111 of the Constitution of the Russian Federation. As the State Duma's representative rightly observed at the hearing, it is thus turned into an ‘instrument for carrying out the will of the head of state’.

In international practice, submitting the same nominee for Chairman of the Government a second time (while prohibiting submission of that nominee a third time) is regarded as an exception to the general rule. It is expressly enshrined in the state's constitution (basic law). The same approach can be seen in the practice of constitutional (charter) regulation of the appointment of the Chairman of the Government in the constituent entities of the Russian Federation. See Article 109 of the Constitution of the Kabardino-Balkarian Republic; Article 104 of the Constitution of the Republic of Dagestan; Article 70 of the Constitution of the Republic of Mordovia; Article 33 of the Charter of Irkutsk Oblast; Article 54 of the Charter of Sverdlovsk Oblast; Article 107 of the Charter of Yaroslavl Oblast; Article 67 of the Charter (Basic Law) of Stavropol Krai; and Article 67 of the Charter (Basic Law) of Murmansk Oblast.

Doctrinal (scholarly) interpretation of the provision in Article 111, part 4, of the Constitution of the Russian Federation takes the same position. It proceeds from the view that there must be ‘at least two’ candidates for Chairman of the Government of the Russian Federation and that ‘unilateral action by the President, and pressure by him on deputies when submitting a nominee for Chairman for their consent, appear undesirable’ (which is precisely what submitting the same individual a second, and especially a third, time amounts to). See Commentary on the Constitution of the Russian Federation, general editor Yu. V. Kudryavtsev, Moscow: Legal Culture Foundation, 1996, p. 465; and Commentary on the Constitution of the Russian Federation, editor-in-chief L. A. Okunkov, Moscow: BEK Publishing House, 1996, p. 477.

In allowing the President of the Russian Federation to submit the same individual as a candidate for Chairman of the Government of the Russian Federation twice and even three times, the Constitutional Court of the Russian Federation did not give a legal assessment of the additional legal arguments advanced by the State Duma's representatives.

1. Given thatUnrelated / insufficient neither the Constitution nor a special law contains qualifications concerning the submission of the same individual for the office of Chairman of the Government, the State Duma specified the procedure for the President of the Russian Federation to submit a nominee for Chairman of the Government of the Russian Federation and for the State Duma to give its consent. In doing so, it proceeded from the premise that the President must submit a new candidate each time.

The view that the Rules of Procedure of the State Duma are not binding on the President of the Russian Federation cannot be accepted. The Rules of Procedure are a normative act of the State Duma; they regulate internal organizational and other relations arising in the legislative process and in the exercise of the State Duma's other powers under the Constitution of the Russian Federation.

The constitutionality of individual provisions of the Rules of Procedure of the State Duma may be reviewed by the Constitutional Court of the Russian Federation at the request of the President of the Russian Federation and other parties entitled to apply under Article 125, part 2(a), of the Constitution of the Russian Federation. Like any other normative act, the Rules of Procedure of the State Duma enjoy a presumption of constitutionality. It is impermissible for the President of the Russian Federation to disregard them.

2. A resolution of the State Duma rejecting a nominee, on a matter within its competence under the Constitution of the Russian Federation (Article 103, part 1(a)), is binding on the President of the Russian Federation. That resolution binds the head of state in that the rejected nominee cannot be submitted again. Otherwise, the State Duma's resolution rejecting the nominee loses all legal meaning. The President of the Russian Federation cannot approach the State Duma twice (let alone three times) on a matter that the State Duma has already decided.

The general rule precludes the President from disregarding the State Duma's already expressed position rejecting a given (specific) nominee. An act applying the law is binding on everyone until it is annulled in the manner prescribed by law.

The principle of coordinated action in the exercise of the powers of the President of the Russian Federation and the State Duma to appoint the Chairman of the Government of the Russian Federation does not exclude a situation in which their interaction and efforts to agree on a nominee for that office create a need to return to a nominee whom the State Duma has rejected.

In that case, what is involved is not the submission of a new nominee within the meaning of Article 111 of the Constitution of the Russian Federation, but a new (renewed) request by the President of the Russian Federation concerning a previously submitted nominee. The State Duma may annul its earlier decision and accept the President's renewed request for consideration. If the State Duma refuses to annul its decision on the rejected nominee, the President of the Russian Federation may submit new nominees on two further occasions.

Separate opinion of Justice V. O. Luchin of the Constitutional Court of the Russian Federation In the case concerning the interpretation of the provisions of Article 111, part 4, of the Constitution of the Russian Federation

The Constitutional Court of the Russian Federation considers that, when submitting nominations to the State Duma for the office of Chairman of the Government of the Russian Federation, the President of the Russian Federation may submit the same candidate twice or three times, or submit a new candidate on each occasion.

The right of the President of the Russian Federation to propose a particular nominee and insist on approval, on the one hand, and the right of the State Duma to consider the nominee submitted and decide whether to consent to the appointment, on the other, must be exercised with due regard for the constitutional requirements of coordinated functioning and interaction among the participants in this process, including through forms of interaction provided for by, or compatible with, the Constitution of the Russian Federation that developLongus ususConstitutional content in the exercise of the head of state's powers and in parliamentary practice.

After three rejections of the nominees submitted by the President of the Russian Federation for Chairman of the Government of the Russian Federation—whether a new candidate was submitted each time or the same candidate was submitted twice or three times—the State Duma must be dissolved.

As I do not fully agree with the conclusions in the Constitutional Court's Judgment in this case, I set out my separate opinion.

In appointing the Chairman of the Government of the Russian Federation, the Constitution gives priority to the President of the Russian Federation. He proposes nominees and ultimately decides on the appointment of the Chairman of the Government. All this, however, takes place under a separation of powers and a system of checks and balances, in which the President's will (choice) is related in a particular way to the State Duma's will (consent).

The process of submitting nominees, as a means by which the President of the Russian Federation exercises his powers, must be carried out through interaction with the State Duma within the framework of existing parliamentaryOther constitutional principle procedures.

The establishment of a specific time limit for the President and the State Duma to undertake appropriate efforts to agree on the proposed nominee demonstrates that Article 111 of the Constitution of the Russian Federation is directed toward achieving agreement between them. The need for preliminary consultations by the President with the State Duma's factions and deputies' groups, and for interaction in other lawful forms, is evident. Unilateral action by the President and pressure on deputies when submitting a nominee for Chairman of the Government are as undesirable as a refusal by the State Duma to seek a compromise with the President.

The President's right enshrined in Article 111, part 4, of the Constitution of the Russian Federation must be considered in conjunction with its other provisions, as part of a system of interconnected rules and principles. Under Article 80, part 2, of the Constitution of the Russian Federation, the President ensures the coordinated functioning and interaction of organs of state power. Such coordination must comply with Article 10 of the Constitution, which provides that the organs of legislative, executive, and judicial power are independent.

The President may initially select and submit nominees for Chairman of the Government on his own initiative and at his own discretion. The State Duma's right of choice is limited to the nominees submitted by the President, but its independence within those limits cannot be called into question. It must have a real opportunity to choose the nominee it considers most acceptable from among those submitted. If the State Duma, as an organ of legislative power, has expressed a negative view of a submitted nominee, the President should, in principle, neither impose his will nor demand reconsideration of that nominee. He may not infringe the independence of the legislature and must comply with its decision.

Under Article 103, part 2, of the Constitution of the Russian Federation, the State Duma adopts resolutions on matters within its jurisdiction. All resolutions, without exception, must be implemented. When the State Duma consents to the appointment of the Chairman of the Government of the Russian Federation, everyone regards its resolution as binding on all, and it constitutes a necessary legal fact for an affirmative decision on that matter. Naturally, when the State Duma gives a negative answer, this also binds the President of the Russian Federation, in particular by preventing him from resubmitting a nominee who has already been rejected.

Since the State Duma's decision is binding on the President as well, he must first submit one nominee. If that nominee is rejected, he must submit another. If the second is also rejected, he submits a third, new nominee, and the issue is then resolved: either the State Duma approves the third nominee or it must be dissolved by presidential decree.

Thus, to the question ‘May the President of the Russian Federation submit a nominee for Chairman of the Government of the Russian Federation who has already been rejected by the State Duma under the procedure laid down in Article 111, part four, of the Constitution of the Russian Federation?’, my answer is: he may not.

If the President nevertheless resubmits a nominee for Chairman of the Government of the Russian Federation who has already been rejected, the State Duma may invoke the fact that its resolution is binding on the President and decline to consider that nominee. It would not, however, violate the Constitution for the State Duma, after further negotiations and mutual accommodation of positions, and taking account of and respecting the President's opinion, to accept his renewed request for consideration by annulling its own earlier resolution. In a new vote, the State Duma may affirm its previous decision or, accepting the President's arguments and taking new circumstances into account, ‘approve’ the previously rejected nominee.

Ensuring coordinated functioning and interaction cannot be reduced to the formal use of conciliation and other lawful methods without achieving actual agreement between the President and the State Duma on the previously rejected nominee. If the participants in the process are content with the fact of negotiations rather than their results, those negotiations are unlikely to be constructive. In any event, the practice whereby the President submits a nominee, the State Duma rejects that nominee, and immediately after the vote the President submits the same nominee again is impermissible.

If the State Duma has agreed to consider the same nominee for Chairman of the Government of the Russian Federation a second or even a third time, rejecting that nominee each time, the legal consequences are the same as when it rejects three different nominees: the President of the Russian Federation dissolves the State Duma (Article 111, part 4, of the Constitution).

An unusual and somewhat contradictory constitutional situation arises. The State Duma's ‘intransigence’ is ended by its dissolution, while the President may impose his will without fearing adverse consequences for himself. What mechanism of checks and balances can one speak of in such a case? Only the submission of different nominees for Chairman of the Government of the Russian Federation can justify a constitutional sanction such as the dissolution of the State Duma.

If the President has the right to choose a nominee for Chairman of the Government, can the State Duma be deprived of the right to consent or refuse consent to the nominee submitted? The range of choices available to the President must be matched by a range of options in the State Duma's freedom to decide. Effectively imposing the same nominee for Chairman of the Government of the Russian Federation on the State Duma deprives it of its right to choose and makes it impossible for it to perform the role in forming the Government that the Constitution assigns to it.

The prohibition on submitting a rejected nominee without the State Duma's consent to resume discussion of that nominee, together with the requirement to dissolve the State Duma after it has rejected the nominees submitted for Chairman of the Government of the Russian Federation three times, helps, alongside other safeguards, to prevent abuse of rights by either the President or the State Duma.

In light of the foregoing, my principal conclusions are as follows.

Article 111, part 4, of the Constitution of the Russian Federation means that the President of the Russian Federation may not, at his own discretion, resubmit a nominee for Chairman of the Government of the Russian Federation whom the State Duma has rejected.

The President may submit a rejected nominee only if, through mutual consultations, the State Duma has agreed to return to discussion of and a vote on that nominee.

After three rejections of the nominees submitted for Chairman of the Government of the Russian Federation—whether or not they included previously rejected nominees—the State Duma must be dissolved and new elections called at the same time.

In that event, the President of the Russian Federation may appoint any individual as Chairman of the Government of the Russian Federation, including a new individual or one of the candidates submitted to and rejected by the State Duma.

Separate opinion of Justice V. I. Oleynik of the Constitutional Court of the Russian Federation

1. In requesting the Constitutional Court to interpret these provisions, the State Duma proceeded from uncertainty as to the meaning of Article 111, part 4, of the Constitution of the Russian Federation, which states: ‘After the State Duma has rejected the nominees submitted for Chairman of the Government of the Russian Federation three times, the President of the Russian Federation appoints the Chairman of the Government of the Russian Federation, dissolves the State Duma, and calls new elections.’

The State Duma requests an interpretation of this constitutional provision on the following questions: may the President of the Russian Federation resubmit a nominee for Chairman of the Government of the Russian Federation whom the State Duma has rejected; and may the State Duma be dissolved after it has rejected the same nominee for that office three times?

The State Duma's position on these questions is that, within the meaning of Article 111 and the related provisions of Articles 83(a), 84(b), and 103, part 1(a), of the Constitution of the Russian Federation, the President of the Russian Federation may not repeatedly submit the same nominee for Chairman of the Government of the Russian Federation; ‘nominees submitted’ must be understood to mean different individuals; and the President of the Russian Federation may dissolve the State Duma under Article 111, part 4, of the Constitution of the Russian Federation only after it has rejected at least three nominees submitted by the President of the Russian Federation for Chairman of the Government of the Russian Federation.

2. The true meaning of the provisions of Article 111, part 4, of the Constitution of the Russian Federation can be determined by using various methods of interpretation together: teleological, historical and political, systematic, grammatical, and logical.

The rationale of Article 111, read together with Articles 83(a), 84(b), and 103, part 1(a), of the Constitution of the Russian Federation, is that, in prescribing the procedure for appointing the Chairman of the Government of the Russian Federation, it should ensure that the President of the Russian Federation and the State Duma agree promptly on a nominee for that office, overcome possible disagreements, and avert a crisis of state power that might result from a delay in resolving this question and, consequently, in forming the Government of the Russian Federation as a whole.

The need for such agreement on the nominee for Chairman of the Government of the Russian Federation, as the initial stage in forming the Government of the Russian Federation, is dictated by the principles of a democratic state governed by the rule of law and follows from the foundations of the constitutional order of the Russian Federation. Under Article 3, part 1, of the Constitution of the Russian Federation, the multinational people of the Russian Federation are the bearer of sovereignty and the sole source of power in the Russian Federation. Part 2 of that Article provides that the people exercise their power directly, as well as through organs of state power and organs of local self-government.

Both the President of the Russian Federation and the State Duma are vested with governing functions by the will of the people who elected them. Under the principle of separation of powers, each of these organs of state power is independent and has its own sphere of competence. At the same time, the principle of separation of powers entails not only the division of the powers of state organs, but also interaction among the branches. The Constitution of the Russian Federation expressly entrusts the President of the Russian Federation with the authority to ensure the coordinated functioning and interaction of organs of state power in the manner it prescribes (Article 80, part 2).

The constitutional provision that the people exercise their power not only directly but also through organs of state power implies that the people's will must also be ascertained, in one form or another, when forming state organs that are not directly elected by the population. This applies above all to the Government of the Russian Federation, which exercises executive power in the Russian Federation.

The people's will is ascertained in this way through the procedure for reaching agreement on a nominee for Chairman of the Government of the Russian Federation laid down in Article 111 of the Constitution of the Russian FederationLegal citation. The President of the Russian Federation and the State Duma, which derive their power directly from the people through free elections, participate in that procedure.

The Government of the Russian Federation is vested with broad constitutional powers. In accordance with the Constitution of the Russian Federation, federal laws, and decrees of the President of the Russian Federation, the Chairman of the Government of the Russian Federation determines the basic directions of the Government's activities, as provided by Article 113 of the Constitution of the Russian Federation. Accordingly, the procedure established by the Constitution of the Russian FederationUnrelated / insufficient for reaching agreement on a nominee for Chairman of the Government of the Russian Federation entails seeking a compromise and resolving possible disagreements between the President of the Russian Federation and the State Duma over the nominee for that office, taking into account both the candidate's personal and professional qualities and the program of government action that the candidate proposes.

The coordinated functioning and interaction of organs of state power prescribed by the Constitution of the Russian Federation (Article 80, part 2) entails, in particular, the need to seek agreement on a nominee for Chairman of the Government of the Russian Federation, which presupposes choosing among possible ways of resolving the matter.

Failure to reach agreement on a nominee for Chairman of the Government of the Russian Federation leads to dissolution of the State Duma and the calling of new elections as a constitutional means of ensuring the continuous functioning of the organs of state power established by the Constitution of the Russian Federation. This includes appointing the Chairman of the Government of the Russian Federation, forming the Government of the Russian Federation as a whole, and electing a new State Duma.

In this case, dissolution of the State Duma is a constitutional measure commensurate with its refusal to give the President of the Russian Federation consent to appoint the nominees submitted for Chairman of the Government of the Russian Federation.

The President's proposal of several nominees for Chairman of the Government of the Russian Federation, rather than just one, as an attempt to reconcile positions with the State Duma on this question, may provide grounds for dissolving the State Duma if agreement is not reached.

3. Article 111 of the Constitution of the Russian Federation does not specify in detail the procedure by which the President of the Russian Federation submits nominees for Chairman of the Government of the Russian Federation. It gives no direct answer either to whether a nominee rejected by the State Duma may be resubmitted or to whether the State Duma is dissolved only after rejecting three different nominees. Part 4 of that Article provides that the State Duma is dissolved ‘after three rejections of the nominees submitted’, rather than ‘after the rejection of three nominees submitted’.

Nor does the meaning of Article 111 of the Constitution of the Russian Federation imply that the President of the Russian Federation may submit one nominee for Chairman of the Government of the Russian Federation three times. Otherwise, part 4 of that Article would provide that the State Duma is dissolved ‘after three rejections of the nominee or nominees submitted’.

A grammatical interpretation of Article 111, part 4, of the Constitution of the Russian Federation, considered in its systematic relationship with the other parts of that Article and in light of its teleological interpretation, supports the conclusion that its use of the plural—‘after three rejections of the nominees submitted’—means that two or more nominees are intended.

During the hearing of this case, linguists who participated as independent experts and specialists, interpreting Article 111, paragraph 4, of the Constitution of the Russian Federation philologically, noted both ‘uncertainty in the use of the word nominee (nominees) ... and its interpretation’ and the fact that ‘a philological interpretation of Article 111, paragraph 4, of the Constitution of the Russian Federation does not permit one to say (without doing some violence to the semantics of Russian speech) that it refers to a single nominee submitted three times for the State Duma's consideration ... otherwise the constitutional text would have used the words “the nominee submitted” instead of “the nominees submitted”.’

The experience alreadyUnrelated / insufficient gained in applying Article 111, part 4, of the Constitution of the Russian Federation has revealed different approaches to exercising the powers it establishes. There have been instances of approval of a proposed nominee for Chairman of the Government of the Russian Federation on the very first submission, upon submission of the same candidate three times, and of the use of conciliation procedures after the same candidate was rejected twice. These circumstances also attest to uncertaintyUnrelated / insufficient about the meaning of Article 111, part 4, of the Constitution of the Russian Federation; this does not rule out the future formation of a constitutional customGeneral constitutional custom, including one based onGeneral constitutional custom one of these forms of interaction between the head of state and the State Duma.

4. Resubmitting a rejected nominee in any sequence—either immediately after rejection or after the rejection of a second nominee—is compatible with the meaning of Article 111, part 4, of the Constitution of the Russian Federation. Likewise, the semantics of the phrase ‘after three rejections of the nominees submitted’ (that is, the significance of using the word ‘nominee’ in the plural) do not preclude submitting more than one nominee as alternatives on each of the three occasions. This would accord with the plural meaning of the word ‘nominees’.

At the same time, the wording, meaning, and purposes of Article 111 of the Constitution of the Russian Federation do not imply that the President of the Russian Federation may submit the same nominee for Chairman of the Government of the Russian Federation three times in succession and consequently dissolve the State Duma after it has rejected that nominee three times. This does not exclude the possibility of submitting that nominee when a new Government of the Russian Federation is formed after the Government's resignation or after a newly elected President of the Russian Federation takes office.

It follows that, under the procedure for appointing the Chairman of the Government of the Russian Federation established by Article 111 and the related provisions of Articles 83(a), 84(b), and 103, part 1(a), of the Constitution of the Russian Federation, the President of the Russian Federation may submit a second time a nominee for that office whom the State Duma has rejected. Submitting the same nominee for Chairman of the Government of the Russian Federation three times in succession is not permitted. The State Duma may not be dissolved on the grounds provided in Article 111, part 4, of the Constitution of the Russian Federation as a consequence of rejecting the same nominee for Chairman of the Government of the Russian Federation three times.

Official Gazette No. [no number supplied in this opening label] Identification: CRO-2014-1-003 SuP-O-1/2014 14 January 2014 CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA 93

Pursuant to Article 129, ninth indent, of the Constitution of the Republic of Croatia (Official Gazette Nos. 56/90, 135/97, 8/98—consolidated text, 113/00, 124/00—consolidated text, 28/01, 41/01—consolidated text, 55/01—correction, 76/10 and 85/10—consolidated text) and Article 87, second indent, of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Official Gazette Nos. 99/99, 29/02 and 49/02—consolidated text), the Constitutional Court of the Republic of Croatia, composed of Jasna Omejec, President of the Court, and Judges Mato Arlović, Marko Babić, Snježana Bagić, Slavica Banić, Mario Jelušić, Davor Krapac, Ivan Matija, Antun Palarić, Aldo Radolović, Duška Šarin and Miroslav Šeparović, at its session held on 14 January 2014, adopted the following

DECISION ON THE CONCLUSION OF THE PROCEEDINGS TO SUPERVISE THE CONSTITUTIONALITY AND LEGALITY OF THE CONDUCT OF THE NATIONAL REFERENDUM HELD ON 1 DECEMBER 2013, AT WHICH ARTICLE 62 OF THE CONSTITUTION OF THE REPUBLIC OF CROATIA WAS SUPPLEMENTED BY A NEW PARAGRAPH 2

I. The Constitutional Court finds: — Pursuant to the Croatian Parliament's Decision Calling a National Referendum, class: 014-01/13-01/03 of 8 November 2013 (Official Gazette No. 134 of 9 November 2013), by which the Croatian Parliament called a ‘national referendum in the Republic of Croatia to decide on the referendum question based on the request of the citizens' initiative “In the Name of the Family” to call a national referendum to amend the Constitution of the Republic of Croatia by inserting into the Constitution of the Republic of Croatia a definition of marriage as a union for life between a woman and a man’ (point I of the Decision), the national referendum was held on 1 December 2013;

— The State Electoral Commission of the Republic of Croatia announced in Official Gazette No. 147 of 10 December 2013 (class: 014-02/13-07/24, reference number: 507/18-13-2 of 10 December 2013) that, at the national referendum referred to in the first indent of this point of the operative part, a majority of the voters participating in the referendum had adopted a ‘decision in favour of inserting into the Constitution of the Republic of Croatia a provision under which marriage is a union for life between a woman and a man’.

II. The Constitutional Court finds: — Under Articles 88 and 90, read in conjunction with Article 96, of the Constitutional Act on the Constitutional Court of the Republic of Croatia, the period for supervising the constitutionality and legality of the conduct of the national referendum referred to in point I of this operative part expired on 9 January 2014 at 24:00;

— The national referendum referred to in point I of this operative part was conducted in accordance with the Constitution of the Republic of Croatia, the Constitutional Act on the Constitutional Court of the Republic of Croatia and the relevant provisions of the Act on Referendums and Other Forms of Personal Participation in the Exercise of State Authority and Local and Territorial (Regional) Self-Government (Official Gazette Nos. 33/96, 92/01, 44/06, 58/06, 69/07, 38/09 and 76/10);

— Upon the entry into force of this Decision, the proceedings to supervise the constitutionality and legality of the conduct of the national referendum referred to in point I of this operative part, and thus the entire referendum procedure relating to the popular initiative ‘to insert into the Constitution of the Republic of Croatia a provision under which marriage is a union for life between a woman and a man’, shall be deemed concluded.

III. The Constitutional Court finds: — In point IV of the Decision Calling a National Referendum, class: 014-01/13-01/03 of 8 November 2013 (Official Gazette No. 134 of 9 November 2013), the Croatian Parliament provided for a constitutional amendment supplementing Article 62 of the Constitution of the Republic of Croatia ‘if the decision in question is adopted at the referendum’. The relevant part of point IV of the Decision, containing the constitutional amendment, reads: ‘… Article 62, paragraph 2, of the Constitution of the Republic of Croatia shall read: “Marriage is a union for life between a woman and a man.” The existing paragraph 2 of Article 62 of the Constitution of the Republic of Croatia shall become paragraph 3 of the same Article of the Constitution of the Republic of Croatia.’;

— The Constitution of the Republic of Croatia does not provide for the promulgation of constitutional amendments adopted at a national referendum held on the basis of a popular constituent initiative. Accordingly, the fifth amendment to the Constitution of the Republic of Croatia entered into force on 1 December 2013 in the wording laid down by the Croatian Parliament through the constitutional amendment in the relevant part of point IV of the Decision Calling a National Referendum, class: 014-01/13-01/03 of 8 November 2013 (Official Gazette No. 134 of 9 November 2013), as quoted in the first indent of this point of the operative part.

IV. The fifth amendment to the Constitution of the Republic of Croatia shall be cited as: Amendment to the Constitution of the Republic of Croatia (popular constituent initiative), Official Gazette (with the appropriate issue number)—Constitutional Court Decision No. SuP-O-1/2014 of 14 January 2014.

V. This Decision shall enter into force on the date of its adoption and shall be published in the Official Gazette.

Reasons 1. At its ninth session, the seventh Croatian Parliament adopted the Decision Calling a National Referendum, class: 014-01/13-01/03 of 8 November 2013 (hereinafter: the Decision Calling a National Referendum). It was published in Official Gazette No. 134 of 9 November 2013 and reads:

‘Pursuant to Article 81 of the Constitution of the Republic of Croatia (Official Gazette Nos. 56/90, 135/97, 8/98—consolidated text, 113/00, 124/00—consolidated text, 28/01, 41/01—consolidated text, 55/01—correction, 76/10 and 85/10—consolidated text) and Article 3 of the Act on Referendums and Other Forms of Personal Participation in the Exercise of State Authority and Local and Territorial (Regional) Self-Government (Official Gazette Nos. 33/96, 92/01, 44/06, 58/06, 69/07 and 38/09), the Croatian Parliament, at its session on 8 November 2013, adopted the following

DECISION CALLING A NATIONAL REFERENDUM I. The Croatian Parliament calls a national referendum in the Republic of Croatia to decide on the referendum question based on the request of the citizens' initiative “In the Name of the Family” to call a national referendum to amend the Constitution of the Republic of Croatia by inserting into the Constitution of the Republic of Croatia a definition of marriage as a union for life between a woman and a man.

II. At the national referendum, voters shall answer the following question: Are you in favour of inserting into the Constitution of the Republic of Croatia a provision under which marriage is a union for life between a woman and a man? FOR AGAINST

III. On 14 June 2013, the Croatian Parliament received the request of the citizens' initiative “In the Name of the Family” to call a national referendum seeking to amend the Constitution of the Republic of Croatia by inserting into the Constitution of the Republic of Croatia a definition of marriage as a union for life between a woman and a man. The request was accompanied by the signatures of voters requesting that the referendum be called.

At the Croatian Parliament's request, the number of signatures was checked. With a statistical margin of error of 1.31 per cent, the Croatian Bureau of Statistics established that 683,948 voter signatures had been collected, representing more than 10 per cent of the total number of registered voters in the Republic of Croatia.

Article 87, paragraph 1, of the Constitution of the Republic of Croatia provides that the Croatian Parliament may call a referendum on a proposal to amend the Constitution, on a bill or on another matter within its competence. Article 87, paragraph 3, provides that the Croatian Parliament shall call a referendum in accordance with the law if requested by ten per cent of the total number of voters in the Republic of Croatia.

The vote on the question referred to in point II of this Decision shall be held so that voters may directly decide on an amendment to the Constitution of the Republic of Croatia in accordance with the Constitution of the Republic of Croatia.

IV. If the decision in question is adopted at the referendum, Article 62, paragraph 2, of the Constitution of the Republic of Croatia shall read: “Marriage is a union for life between a woman and a man.” The existing paragraph 2 of Article 62 of the Constitution of the Republic of Croatia shall become paragraph 3 of the same Article of the Constitution of the Republic of Croatia.

V. The national referendum shall be held on 1 December 2013.

VI. This Decision shall enter into force on the date of its adoption and shall be published in the Official Gazette. Class: 014-01/13-01/03 Zagreb, 8 November 2013 CROATIAN PARLIAMENT Speaker of the Croatian Parliament Josip Leko, signed.’

2. The State Electoral Commission of the Republic of Croatia (hereinafter: SEC) published on its official website the Report on the National Referendum Held on 1 December 2013, class: 014-02/12-20/03, reference number: 507-12-02 of 10 December 2013. Attached to the Report were the complete official results of that national referendum, which read:

COMPLETE OFFICIAL RESULTS OF THE NATIONAL REFERENDUM As of: 2 December 2013 at 09:00. Number of polling stations processed: 6,714 out of a total of 6,714 (100.00%). TOTAL—REPUBLIC OF CROATIA TOTAL Number of voters at the polling stations processed: 3,791,000 Voters who attended the polls: 1,436,835 (37.90%) Voters who cast a vote (according to ballot papers): 1,436,163 (37.88%) Number of valid ballot papers: 1,427,967 (99.43%) Number of invalid ballot papers: 8,196 (0.57%) Number of votes / percentage FOR: 946,433 / 65.87% AGAINST: 481,534 / 33.51%

Data processing—© 2013 APIS IT d.o.o. Source: State Electoral Commission of the Republic of Croatia, http://www.izbori.hr/2013Referendum/rezult/r_00_0000_ 000.html?t=1388873781490 (accessed: 14 January 2014)

2.1. On the basis of that report, the SEC published the result of the national referendum held on 1 December 2013 in Official Gazette No. 147 of 10 December 2013, class: 014-02/13-07/24, reference number: 507/18-13-2 of 10 December 2013. The announcement reads:

‘The State Electoral Commission of the Republic of Croatia, composed of Branko Hrvatin, graduate in law, President; Jakob Miletić, graduate in law, Vice-President; Zdravka Čufar Šarić, graduate in law, Vice-President; Aleksandra Jozić-Ileković, graduate in law, Vice-President; Davor Orlović, graduate in law, member; Zorislav Ham, graduate in law, member; Josip Vresk, graduate in law, member; and Janja Horvat Drobnjak, graduate in law, member, pursuant to Article 44 of the Act on Referendums and Other Forms of Personal Participation in the Exercise of State Authority and Local and Territorial (Regional) Self-Government (Official Gazette Nos. 33/96, 92/01, 44/06—Act on the State Electoral Commission of the Republic of Croatia, 58/06—Constitutional Court Decision No. U-I-177/2002, 69/07—Constitutional Court Decision No. U-I-2051/2007, 38/09, 76/10—Amendment to the Constitution of the Republic of Croatia) and the Report of the State Electoral Commission of the Republic of Croatia, class: 014-02/13-07/24, reference number: 507/18-13-1 of 10 December 2013,

announces that at the national referendum held on 1 December 2013 pursuant to the Croatian Parliament's Decision of 8 November 2013 (Official Gazette No. 134/13), in accordance with Article 86, paragraph 4, of the Constitution of the Republic of Croatia (Official Gazette Nos. 56/90, 135/97, 8/98—consolidated text, 113/00, 124/00—consolidated text, 28/01, 41/01—consolidated text, 55/01—correction, 76/10 and 85/10—consolidated text, in which the provision cited is numbered Article 87, paragraph 4), a majority of the voters participating in the referendum adopted a

DECISION IN FAVOUR OF INSERTING INTO THE CONSTITUTION OF THE REPUBLIC OF CROATIA A PROVISION under which marriage is a union for life between a woman and a man. Class: 014-02/13-07/24 Reference number: 507/18-13-2 Zagreb, 10 December 2013 President Branko Hrvatin, graduate in law, signed.’

3. The relevant provisions of the Constitutional Act on the Constitutional Court of the Republic of Croatia (Official Gazette Nos. 99/99, 29/02 and 49/02—consolidated text; hereinafter: the Constitutional Act) read:

‘Article 88 Political parties, candidates, at least 100 voters or at least 5% of the voters in an electoral constituency in which elections are being held may, during the elections or no later than the expiry of 30 days from the date of publication of the election results, request the Constitutional Court, in exercising supervision over the constitutionality and legality of the elections, to take appropriate measures if those activities are being conducted contrary to the Constitution and the law.’

‘Article 90 (1) Proceedings to supervise the constitutionality and legality of elections may be instituted within the period referred to in Article 88 of this Constitutional Act, calculated from the date of publication of the election results in the Official Gazette. (2) The period referred to in paragraph 1 of this Article shall begin to run on the day the Official Gazette is issued in print; the Constitutional Court shall also have the power to determine the actual day on which the Official Gazette was issued in print.’

‘Article 96 The Constitutional Court shall supervise the constitutionality and legality of the conduct of national referendums and take measures by applying, as appropriate, the provisions of Articles 87 to 96 of this Constitutional Act.’

3.1. The result of the national referendum of 1 December 2013 was published in the Official Gazette on 10 December 2013. The period for supervising the constitutionality and legality of the conduct of the national referendum under Articles 88 and 90, read in conjunction with Article 96, of the Constitutional Act therefore expired on Thursday, 9 January 2014, at 24:00.

4. Between the date of the national referendum, 1 December 2013, and 9 January 2014 at 24:00, a total of twelve (12) applications to supervise the constitutionality and legality of the conduct of the national referendum were submitted to the Constitutional Court. In all those constitutional cases, the Constitutional Court issued rulings dismissing the applications as inadmissible.

Since the period for submitting applications to supervise the constitutionality and legality of the conduct of the national referendum held on 1 December 2013 expired on 9 January 2014 at 24:00, and all applications submitted had been dismissed as inadmissible, the Constitutional Court decided in these proceedings that the referendum had been conducted in accordance with the Constitution, the Constitutional Act and the relevant statute. This also established the conditions for deciding that the proceedings to supervise the constitutionality and legality of the national referendum held on 1 December 2013, and thus the entire referendum procedure relating to the popular initiative ‘to insert into the Constitution of the Republic of Croatia a provision under which marriage is a union for life between a woman and a man’, should be deemed concluded.

5. In point IV of the Decision Calling a National Referendum, the Croatian Parliament provided for a constitutional amendment supplementing Article 62 of the Constitution ‘if the decision in question is adopted at the referendum’. The constitutional amendment read: ‘… Article 62, paragraph 2, of the Constitution of the Republic of Croatia shall read: “Marriage is a union for life between a woman and a man.” The existing paragraph 2 of Article 62 of the Constitution of the Republic of Croatia shall become paragraph 3 of the same Article of the Constitution of the Republic of Croatia.’

Accordingly, following the national referendum held on 1 December 2013, and in accordance with the result established by the SEC on 10 December 2013, Article 62 of the Constitution was supplemented by a new paragraph 2 (‘Marriage is a union for life between a woman and a man.’), and the former paragraph 2 became paragraph 3.

6. The fifth amendment to the Constitution was adopted at a national constituent referendum at which ‘the people’, within the meaning of Article 1, paragraph 3, of the Constitution, for the first time decided directly on a specific proposal to amend the Constitution on the basis of a popular constituent initiative—that is, on a constitutional amendment proposed by voters. Accordingly, unlike the constitutional amendment procedure conducted by the Croatian Parliament, the constitution-maker made no provision for the promulgation of constitutional amendments proposed by voters (a popular constituent initiative) and carried out through a popular constituent referendum. By its very nature, this procedure requires no act promulgating the constitutional amendment, since the people themselves decide directly on the constitutional amendment within the meaning of Article 1, paragraph 3, of the Constitution.

In this connection, the Constitutional Court recalls that in point 6.1 of Warning No. U-VIIR-5292/2013 of 28 October 2013 (Official Gazette No. 131 of 30 October 2013), it emphasized that ‘a decision by which the Constitutional Court confirms that a particular popular constituent referendum—at which a majority of the people, within the meaning of Article 1, paragraph 3, of the Constitution, voted FOR the proposed referendum question—was conducted in accordance with the Constitution also means that the Constitution was amended on the day that referendum was held, with immediate legal effect. The Constitutional Court shall declare that date in its decision, which it shall publish in the Official Gazette.’

7. Having decided to conclude the referendum procedure, it therefore remained for the Constitutional Court to declare in this Decision that: — At the national referendum on 1 December 2013, a ‘decision in favour of inserting into the Constitution of the Republic of Croatia a provision under which marriage is a union for life between a woman and a man’ was adopted, as announced by the SEC on 10 December 2013; — The fifth amendment to the Constitution entered into force on 1 December 2013 in the wording laid down by the Croatian Parliament through the constitutional amendment in the relevant part of point IV of the Decision Calling a National Referendum, quoted in point III, first indent, of the operative part of this Decision (see also point 5 of the reasons for this Decision).

8. The Constitutional Court recalls that in point 4 of Warning No. U-VIIR-5292/2013 of 28 October 2013, it emphasized that the first popular constituent referendum was being proposed at a time when the procedural rules for conducting such a referendum in the Republic of Croatia had not been developed in detail. The same observation applies to the rules identifying the body competent to draft the normative text of constitutional amendments, or to review that text when proposed by voters, and to the rules governing the procedure and manner in which such constitutional amendments are drafted (or reviewed) and published.

In the absence of these written legal rules, and particularly in the absence of publication in the Official Gazette of the specific constitutional amendment supplementing Article 62 with a new paragraph 2, and in view of possible uncertainty as to which issue of the Official Gazette should be cited when referring to the fifth amendment to the Constitution, the Constitutional Court, guided by the principles of legal security and legal certainty, considered it necessary to determine how the fifth amendment to the Constitution should be designated and cited.

Accordingly, the fifth amendment to the Constitution should be cited as: Amendment to the Constitution of the Republic of Croatia (popular constituent initiative), Official Gazette (with the appropriate issue number)—Constitutional Court Decision No. SuP-O-1/2014 of 14 January 2014.

9. Finally, the Constitutional Court emphasizes that there should be no uncertainty about the Article of the Constitution that was supplemented by a new paragraph 2 (‘Marriage is a union for life between a woman and a man.’) at the national referendum on 1 December 2013. In the original constitutional texts adopted by the Croatian Parliament (Official Gazette Nos. 56/90, 135/97, 113/00, 28/01 and 76/10), it is Article 61. In the consolidated constitutional texts successively prepared by the Croatian Parliament's Committee on the Constitution, Standing Orders and Political System (Official Gazette Nos. 56/90, 135/97, 8/98—consolidated text, 113/00, 124/00—consolidated text, 28/01, 41/01—consolidated text, 55/01—correction, 76/10 and 85/10—consolidated text), it is Article 62.

The Constitutional Court has therefore exceptionally accepted in this Decision the numbering of the Articles of the Constitution as set out in the consolidated text published in Official Gazette No. 85 of 9 July 2010, because point IV of the Decision Calling a National Referendum is based on that text.

10. The Croatian Parliament has the authority to prepare a consolidated text of the Constitution incorporating its fifth amendment of 1 December 2013 in the wording contained in the relevant part of point IV of the Decision Calling a National Referendum, quoted in point III, first indent, of the operative part of this Decision (see also point 5 of the reasons for this Decision).

In connection with the preparation of a consolidated text of the Constitution, the Constitutional Court refers in particular to Chapter II of Report No. U-X-5076/2013 of 15 October 2013 concerning the procedure for the fifth amendment to the Constitution, initiated on 10 July 2013 by a proposal from 46 members of the Croatian Parliament (Official Gazette No. 127 of 18 October 2013), which stated, among other things:

‘8.1. Finally, the Constitutional Court notes that the Croatian Parliament, when acting as constitution-maker, is the only body authorized to amend and supplement the text of the Constitution. No one other than the constitution-maker may alter the substance of the promulgated constitutional text, its structure, or the designations and punctuation contained in it, unless the constitution-maker has expressly granted constitutional authority for particular alterations.

Since departures from these fundamental rules have occurredLongus usus over timeLongus usus in parliamentary practiceLongus usus, the constitution-maker, by expressly stating its position on the structure of the Constitution (that is, the number of its chapters and articles) and on how the constitutional text is to be handled when preparing consolidated texts of the Constitution, would permanently resolve the problems that have arisen and make practice uniform. This would contribute to the integrity of the constitutional text and the legal security of the constitutional order of the Republic of Croatia. The constitution-maker's position would be binding on everyone, including the Constitutional Court of the Republic of Croatia.’

The Constitutional Court considers these findings relevant because only the Croatian Parliament can resolve the existing uncertainties concerning the structure of the Constitution, that is, the number of its chapters and articles. The manner in which consolidated texts are prepared, including whether changes to the numbering of the Articles of the Constitution are permissible, depends directly on that issue.

10.1. Finally, the Constitutional Court notes that Report No. U-X-5076/2013 of 15 October 2013 was adopted before the Croatian Parliament's Decision Calling a National Referendum (8 November 2013). The referendum was held on 1 December 2013, and at it the people, within the meaning of Article 1, paragraph 3, of the Constitution, amended the Constitution. This was, overall, the fifth amendment to the Constitution since its adoption on 22 December 1990.

AccordinglyUnrelated / insufficient, the Constitutional Court will prepare a correction to Report No. U-X-5076/2013 of 15 October 2013 in the part referring to the ‘fifth’ constitutional amendment and publish it in the Official Gazette.

11. The ruling in point II of the operative part of this Decision is based on Articles 88 and 90, read in conjunction with Article 96, of the Constitutional Act.

The findings in points I and III of the operative part of this Decision are based on the general supervisory powers under Article 88, second indent, read in conjunction with Article 2, paragraph 1, of the Constitutional Act.

The ruling in point IV of the operative part of this Decision is based on Article 3 of the Constitution, which provides that the rule of law is a highest value of the constitutional order of the Republic of Croatia and a basis for interpreting the Constitution, and is made within the general supervisory powers under Article 88, second indent, read in conjunction with Article 2, paragraph 1, of the Constitutional Act.

12. This Decision shall enter into force on the date of its adoption and shall be published in the Official Gazette (point V of the operative part of the Decision).

No. SuP-O-1/2014 Zagreb, 14 January 2014 CONSTITUTIONAL COURT OF THE REPUBLIC OF CROATIA President Professor Jasna Omejec, PhD, signed.

Today's Date Identification: NOR-2021-1-002 HR-2021-655-P 26 March 2021 ADVISORY OPINION TO THE STORTING UNDER ARTICLE 83 OF THE CONSTITUTION Delivered on 26 March 2021 by the Supreme Court sitting in plenary session, composed of: Chief Justice Toril Marie Øie Justice Magnus Matningsdal Justice Jens Edvin A. Skoghøy Justice Hilde Indreberg Justice Bergljot Webster Justice Wilhelm Matheson Justice Aage Thor Falkanger Justice Kristin Normann Justice Ragnhild Noer Justice Henrik Bull Justice Knut H. Kallerud Justice Per Erik Bergsjø Justice Arne Ringnes Justice Wenche Elizabeth Arntzen Justice Ingvald Falch Justice Espen Bergh Justice Cecilie Østensen Berglund Justice Erik Thyness Justice Kine Steinsvik HR-2021-655-P (case no. 21-001061SIV-HRET) 2 HR-2021-655-P (case no. 21-001061SIV-HRET) 1 The Storting's question and the Supreme Court's conclusion On 17 December 2020, the Storting adopted the following resolution:

“Pursuant to Article 83 of the Constitution, the following question is submitted to the Supreme Court: May the Storting, under Article 26, second paragraph, of the Constitution, consent to participation in two decisions of the EEA Joint Committee incorporating into the EEA Agreement Directive 2012/34/EU establishing a single European railway area and the legal acts constituting the fourth railway package?” The Supreme Court has unanimously concluded that the Storting may consent to the incorporation of the fourth railway package into the EEA Agreement under Article 26, second paragraph, of the Constitution. In the Supreme Court's view, consent to the transfer of powers to an international body may be given by a simple majority under Article 26, second paragraph, if the transfer is of limited intrusiveness. This also applies where powers are transferred to an organisation to which Norway does not belong. The Supreme Court has placed particular weight on the Storting's longstanding, and usually unanimous, use of Article 26, second paragraph, for transfers of powers regarded as being of limited intrusivenessConstitutional content. This applies both to transfers to organisations of which Norway is a member and, in some cases, to transfers to organisations to which Norway does not belong. Such practice carries considerable legal weight.

In the Supreme Court's view, the powers to be transferred to the European Union Agency for Railways under the rules of the fourth railway package do not exceed what must be regarded as a transfer of limited intrusiveness. The Supreme Court's reasoning is explained in greater detail below. First, an account is given of how the Court has dealt with the Storting's question (section 2). The general legal issues raised by that question are then discussed (sections 3 and 4). Before the question is answered in sections 6 and 7, section 5 provides an overview of the relevant parts of the EU's fourth railway package.

2 The Supreme Court's consideration of the Storting's resolution The Storting adopted its resolution under Article 83 of the Constitution, which reads: “The Storting may obtain the Supreme Court's opinion on legal subjects.”Unrelated / insufficient The Constitution itself contains no detailed rules on the procedure to be followed by the Supreme Court. The Supreme Court Act of 12 September 1818 provided that opinions to the Storting were to be signed by all the justices, that is, delivered by the full Supreme Court.Other constitutional principle Justices disagreeing with the majority were also entitled to express their views. These provisions were repealed in 1937 in connection with the final implementation of the 1915 reform of civil procedure. Since then, legislation has contained no detailed procedural rules for the Supreme Court's advisory opinions to the Storting under Article 83 of the Constitution. HoweverUnrelated / insufficient, even todayUnrelated / insufficient it is natural for such opinions to be delivered by the Supreme Court in plenary session, with any dissenting justices able to express their views. [Page 3; HR-2021-655-P (case no. 21-001061SIV-HRET)] This procedure was also followed when the Supreme Court last delivered an advisory opinion to the Storting, in autumn 1945.

Accordingly, all Supreme Court justices have participated in preparing this opinion, except Justice Høgetveit Berg, who is on study leave. As a naturalUnrelated / insufficient consequence of the absence of formal parties, the Supreme Court has considered the matter in writing, without adversarial argument. To ensure that the matter was as fully elucidated as possible, the Court decided to allow interested persons to submit written observations, following the model of section 15-8 of the Dispute Act. That provision allows persons other than the parties to submit written observations addressing public interests. Interested persons other than those listed in section 15-8, first paragraph, (a) (associations and foundations) and (b) (public bodies) were also allowed to submit observations. The deadline was 29 January 2021.

Observations were received from: • the Office of the Attorney General (Civil Affairs), on behalf of the Government and the ministries concerned; • No to the EU (Nei til EU); • the Norwegian Railway Workers' Union and the Norwegian Locomotive Drivers' Union; • the Confederation of Norwegian Enterprise; • Flytoget AS; • Professor Christoffer Conrad Eriksen of the Faculty of Law, University of Oslo, and Professor Eirik Holmøyvik of the Faculty of Law, University of Bergen; • two private individuals. The observations are available on the Supreme Court's website. A detailed understanding of the fourth railway package requires a fairly substantial degree of expertise in railway matters.

In this respect, the Supreme Court has had to rely on the descriptions in Norwegian public documents and the observations mentioned above. The same applies to the implementation of the rules at national and EU levels. The Supreme Court notes that in November 2018 the organisation No to the EU brought proceedings against the State, seeking a declaration that the State must refrain from implementing the EU's third energy market package in Norwegian law. In March 2018, the Storting consented under Article 26, second paragraph, of the Constitution to incorporating that package into the EEA Agreement. No to the EU argues that consent should have been given under Article 115. The State sought dismissal of the action as inadmissible. By its plenary ruling HR-2021-417-P of 1 March 2021, the Supreme Court allowed the action to proceed. In that ruling, however, the Court did not address whether the Storting could give its consent under Article 26, second paragraph, of the Constitution.

3 General discussion of the constitutional questions raised by the case 3.1 The fundamental issues Article 26 of the Constitution reads: “The King has the right to call up troops, to engage in war in defence of the realm and to make peace, to conclude and denounce treaties, and to send and receive diplomatic representatives. [Page 4; HR-2021-655-P (case no. 21-001061SIV-HRET)] Treaties on matters of particular importance, and in all cases treaties whose implementation under the Constitution requires a new statute or a decision of the Storting, become binding only when the Storting has given its consent.”

Authority in foreign affairs thus rests in principle with the King, meaning in practice the Government. Nevertheless, the Storting's consent, by a simple majority, is required to conclude treaties necessitating legislative amendment or another decision of the Storting, typically an appropriation, or which are otherwise “of particular importance”. Under establishedLongus usus practice, consent is also required when Norway agrees to the incorporation of new EU legal acts into the EEA Agreement. Recommendation 182 S (2020–2021) shows that the question on which the Storting seeks the Supreme Court's answer is whether incorporation of the fourth railway package into the EEA Agreement entails a form of transfer of powers from Norwegian authorities to EU bodies for which consent under Article 26, second paragraph, of the Constitution is insufficient.

The Supreme Court returns in section 5 to the nature of the transfer of powers involved. The alternative to consent under Article 26, second paragraph, is normally consent under Article 115 of the Constitution, adopted in 1962 as Article 93. It reads: “In order to safeguard international peace and security or promote the international legal order and cooperation, the Storting may, by a three-quarters majority, consent to an international organisation to which Norway belongs or accedes exercising, within a substantively limited field, powers which under this Constitution otherwise belong to the authorities of the State, but not the power to amend this Constitution. When the Storting gives its consent, at least two-thirds of its members must be present, as when considering constitutional proposals.

The provisions of this Article do not apply to participation in an international organisation whose decisions have effect for Norway solely under international law.” The principal forms of authority which under the Constitution “belong to the authorities of the State” are legislative (Article 75), executive (Article 3) and judicial power (Article 88). A transfer of these powers, or other powers vested in Norwegian authorities by the Constitution, to bodies that do not derive their authority from the Constitution itself may be regarded as a derogation—an exception—from the Constitution. This explains why consent under Article 26, second paragraph, is in principle insufficient in these cases. Especially in earlier times, the requirement of independence in Article 1 of the Constitution was also central to debate over the extent of the foreign affairs power.

Under its second paragraph, Article 115 does not apply to participation in international organisations that adopt only decisions having effect for Norway solely under international law. Put simply, a distinction is drawn between decisions binding only on Norway and decisions also directly binding within Norway: that is, decisions imposing obligations on residents or undertakings in Norway without separate implementing decisions by Norwegian authorities. In other words, consent to membership of organisations that adopt only decisions having effect for Norway under international law can in principle be given under Article 26, second paragraph.

The extent to which this applies may be questioned. The King can hardly have unlimited authority to bind Norway to such international cooperation, even with consent under Article 26, second paragraph. Answering the Storting's question, however, does not require further discussion of this issue. [Page 5; HR-2021-655-P (case no. 21-001061SIV-HRET)] Unless otherwise indicated, references below to a “transfer of powers” do not mean the kind of decisions covered by Article 115, second paragraph.

Drawing on the background to Article 115 and on legal scholarship, a view of the Constitution has developed according to which the Storting may consent under Article 26, second paragraph, to a transfer of powers provided that it is considered to be of limited intrusiveness. The Storting has relied on this view in a number of cases. The central question it has now submitted to the Supreme Court is whether this practice accords with the Constitution and, if so, whether the Storting's consent to the fourth railway package may be given under Article 26, second paragraph.

As the Supreme Court will explain further, the fourth railway package involves transferring the power to adopt decisions binding within Norway to EU bodies, rather than EEA or EFTA bodies. In Recommendation 182 S (2020–2021), page 2, the majority stresses this in explaining its request for the Supreme Court's opinion. Article 115 of the Constitution concerns transfers of powers to “an international organisation to which Norway belongs or accedes”. Direct transfers to EU bodies have not been considered to meet that condition, even when made within the framework of EEA cooperation. The alternative to Article 26, second paragraph, is then the ordinary constitutional amendment procedure under Article 121 of the Constitution. In sections 3.10, 4 and 6, the Supreme Court comments further on the significance, for use of Article 26, second paragraph, of the fact that powers are transferred directly to an EU body.

3.2 Starting point and structure of the discussion The wording of Article 115 of the Constitution contains no exception for transfers of powers of limited intrusiveness. Nor does the wording of Article 26, second paragraph, state that consent under that provision suffices for such transfers. However, the wording of Article 26, second paragraph, which refers to consent in entirely general terms, does not preclude this interpretation. Since the issue concerns the scope of Article 26, second paragraph, the most natural approach as a matter of legal structure is to regard it as a question of interpreting that provision, rather than other constitutional provisions such as Articles 115 or 121, or as a question of the formation of constitutional customary lawGeneral constitutional custom.

In deciding whether Article 26, second paragraph, authorises consent to transfers of powers so long as they are of limited intrusiveness, the Supreme Court considers it useful first to examine how that provision was understood before Article 115 was adopted in 1962, then as Article 93; see section 3.3. Section 3.4 then describes the adoption of Article 93, and section 3.5 the subsequent practice and scholarship up to the establishment of the EEA in 1992. The Storting's consideration of the EEA Agreement is discussed in section 3.6. Sections 3.7 and 3.8 examine parliamentary practice up to the present, and section 3.9 the legal scholarship relating to that practice. The Supreme Court then sets out its own view in section 3.10.

3.3 Views on Article 26, second paragraph, before the adoption of Article 93 Before Article 93, now Article 115, was adopted in 1962, views appear to have differed on the extent to which the Storting could consent under Article 26, second paragraph, to transferring powers to international organisations. Legal scholars considered this possible to some extent, but disagreed about how much room there was for it. Views in the Storting were also divided. [Page 6; HR-2021-655-P (case no. 21-001061SIV-HRET)] The issue arose in connection with Norway's participation in NATO's integrated command system in 1951. One question concerned Article 25 of the Constitution on the King's command authority, a power constitutionally vested in one of the State's authorities. Recommendation S no. 40 (1951) proceeded on the basis that participation would not conflict with the Constitution. The question had previously been examined by the Ministry of Justice and Professor Frede Castberg, with the support of Professor Johs. Andenæs; all considered that the Constitution did not prevent participation.

It was particularly the emergence of what has now become the European Union, and which until 1958 consisted of the European Coal and Steel Community, that increasingly brought the scope of Article 26, second paragraph, into focus. Other forms of international cooperation, including disarmament, were also envisaged as potentially raising the question. An overview of the debate appears in Recommendation S no. 185 (1956) concerning a proposal for a new Article 93 of the Constitution—a proposal that did not succeed at that time.

That overview shows differing views on whether Article 26, second paragraph, provided a basis for consenting to Norwegian participation in organisations of this kind. Professor Castberg had expressed the view that it authorised consent to Norway's accession to the European Coal and Steel Community, while others considered this impossible. The recommendation referred, among other things, to a 1950 statement by the Ministry of Justice that Article 26, second paragraph, did not authorise consent to Norway's participation in a proposed international atomic energy control body, because there would be “only limited constitutional scope for entrusting an international body with the exercise of such powers [administrative and jurisdictional powers] with immediate effect for Norwegian territory or Norwegian citizens”. It also referred to the Ministry's statement that “delegation” of legislative power to an international organisation was generally impermissible, but that—as the committee paraphrased it—the Ministry would not rule out revocable delegation in particular legislative fields not affecting the realm's freedom, independence or integrity.

The Foreign Affairs and Constitutional Committee, which issued the recommendation, was also divided on Article 26, second paragraph. The majority recommended adopting a new Article 93, reasoning that otherwise doubts could arise as to whether the Constitution permitted Norwegian participation in international cooperation allowing an organisation to make decisions directly affecting Norwegian citizens, including on disarmament and the inspection of nuclear installations. A non-socialist minority opposed the proposal, particularly on the basis of its understanding of Article 1 of the Constitution, which describes Norway as a free and independent realm. The minority expressly disagreed with both Professor Castberg and the Ministry of Justice. However, it too accepted the earlier decision to participate in NATO's integrated command system as constitutional, and otherwise saw no reason to express a view on which forms of international cooperation beyond those already existing could be accepted under the Constitution as it then stood. Since it had “not been possible to reach agreement” in the committee, the majority did not pursue any of the proposed alternatives for a new Article 93.

Thus, Norway did not entirely reject transfers of powers based on the general consent provision in Article 26, second paragraph. This appears to contrast with the prevailing view of the corresponding question in Danish constitutional law. [Page 7; HR-2021-655-P (case no. 21-001061SIV-HRET)] In 1953, Denmark adopted a constitutional provision broadly corresponding to what later became Norway's Article 93/115. The reports of the Nordic Jurists' Meeting in Oslo in 1954 show that Danish constitutional scholars considered that no form of transfer of powers to international organisations would have been possible without the new provision.

3.4 Adoption of Article 93 of the Constitution In connection with the adoption of the new Article 93 in 1962, opinions were obtained from Professors Castberg and Andenæs and from the Ministries of Foreign Affairs and Justice, and printed in Document no. 3 (1961–1962). Like the subsequent political debate, these opinions largely focused on whether the new constitutional provision was sufficient to authorise Norwegian membership of the European Communities—the provision's “upper boundary”. To some extent, however, they also addressed its “lower boundary”, namely the boundary with Article 26, second paragraph. To varying degrees, they left open the possibility that Article 26, second paragraph, could authorise consent to transfers of powers within fairly narrow limits; Andenæs and the Ministry of Justice were probably the most restrictive.

Castberg maintained his liberal view of transferring powers to adopt decisions directly effective in Norway on the basis of consent under Article 26, second paragraph, but stressed that transfers “across extensive areas of economic, social or cultural life” clearly fell outside it; see page 7. Andenæs would not regard “every transfer of legislative power” as contrary to the Constitution as it then stood: it “would not be reasonable to assume that the Constitution prohibits the transfer of limited powers in fields of a technical nature”; see page 15.

He did not discuss transfers of administrative or judicial power in detail, since he considered membership of the European Communities to require the adoption of a new Article 93 in any event. The Ministry of Foreign Affairs considered that the Constitution contained no absolute prohibition on transferring powers to an international organisation, but that such transfers required considerably greater caution than delegation to domestic Norwegian authorities; see page 29. The Ministry of Justice initially referred to its earlier statements quoted in Recommendation S no. 185 (1956), but now considered there to be “little doubt” that “rather narrow limits must be placed on the scope for entrusting non-Norwegian bodies with powers under domestic law”; see page 47.

Whereas the requirement of independence in Article 1 had previously been central to the debate, it was now the constitutional provisions assigning powers to the various organs of the State that were regarded as limiting the transfers of powers that could be approved under Article 26. In their opinions, Castberg and Andenæs referred, among other things, to the Norwegian-Swedish customs cooperation agreement of 1959. It allows each country's customs authorities to enforce their own country's customs rules within certain zones in the neighbouring country's territory. Castberg also referred to agreements on recognition and enforcement of judgments in civil matters, and to legislation presupposing that corresponding agreements could be concluded in criminal matters without constitutional impediment. Both forms of interstate cooperation are based on mutual acceptance of one another's official acts and thus differ from transferring powers to an international organisation. Such agreements nevertheless show that the Constitution had not been understood as an absolute bar to “powers which under this Constitution otherwise belong to the authorities of the State” being exercised by authorities other than Norwegian ones, with effect for Norwegian citizens or Norwegian territory. [Page 8; HR-2021-655-P (case no. 21-001061SIV-HRET)]

Apart from the 1951 decision on participation in NATO's integrated command system, there was at this time no real state practice concerning transfers to international organisations of powers to adopt decisions directly affecting Norwegian citizens and undertakings. The transfer of powers to NATO concerned command over military units, and thus over parts of the state apparatus. In the Foreign Affairs and Constitutional Committee's recommendation on a new Article 93, Recommendation S no. 100 (1961–1962), page 141, the majority—all but one member—stated that, given the development of international cooperation after the Second World War, Norway too needed clearer lines defining the constitutional authority to participate in building the international legal community. The minority considered the proposed Article 93 too far-reaching and thought it also failed to provide the necessary clarity.

In its reasoning, the majority reviewed a series of earlier cases, beginning with participation in the League of Nations, which had provoked constitutional debate. Its account distinguished only to a limited extent between transferring powers by accepting that Norway could become bound against its will under international law and transferring powers to adopt decisions directly affecting Norwegian citizens and undertakings. The form of transfer involved in participating in international organisations without a right to opt out of being bound by their decisions had also previously been debated, particularly in relation to the independence requirement in Article 1. The review did not, however, reject earlier positions accepting that some transfer of powers was compatible with the Constitution.

On page 139, the majority referred both to the experts' view that Norwegian membership of the European Communities required constitutional amendment and to agreements on recognition and enforcement of judgments as examples of agreements “recognising foreign states' right to adopt decisions with direct effect in Norway”. The one member wholly opposed to the proposed new Article 93, for his part, expressly stated that earlier practice fell within constitutional limits. Against this background, the meaning of the statement about the need for clearer constitutional lines is not entirely clear.

It can be read as expressing a need for clearer authority for Norwegian participation in closer and more binding cooperation—particularly possible membership of the European Communities—than Article 26, second paragraph, was generally thought to permit. But it can also be understood as signalling that, at least to some extent, the new provision should now be used where Article 26, second paragraph, had previously been regarded as sufficient. Nevertheless, it can be established that the adoption of what is now Article 115 did not rest on an assumption that Article 26, second paragraph, could never be used to consent to transfers of powers to international organisations. This also applied to powers to adopt decisions directly effective in Norway.

9 HR-2021-655-P (case no. 21-001061SIV-HRET) 3.5 Parliamentary practice and legal scholarship between the adoption of Article 93 in 1962 and approval of the EEA Agreement in 1992 The question whether the new Article 93 also governed types of cases previously dealt with under Article 26, second paragraph, arose immediately after its adoption. At that time, the Storting was considering a proposal for Norway to participate in a joint air defence system for NATO's European region. Proposition to the Storting no. 5 (1961–1962) states that the Ministry of Justice had regarded Article 26, second paragraph, as providing the necessary authority for the Storting's consent. After Article 93 was adopted, the Storting's Military Affairs Committee asked whether the Ministry maintained its view. In a letter reproduced in Recommendation S no. 149 (1962–1963), pages 331–332, the Ministry confirmed that it did, but added that the wording of Article 93 did not provide sufficiently certain guidance to determine whether a decision now had to be taken under that provision: “The question is of great importance in principle and should, in the Ministry's view, be resolved by the Storting itself.”

The Military Affairs Committee referred the question to the Foreign Affairs and Constitutional Committee, which stated, among other things, in an appendix to Recommendation S no. 149 (1962–1963) (emphasis as in the original): “As regards these measures in relation to the new Article 93 of the Constitution, the background to that Article must be kept in mind. Its background was the anticipated need for constitutional authority to transfer, within a limited field, legislative, executive or judicial powers to a supranational body with direct effect for Norwegian citizens.

The entire history of the new Article 93 shows that it is a forward-looking provision, intended to enable decisions for which the Constitution previously provided no authority. It would not accord with the spirit of the Article to interpret its wording to mean that measures authorised by the Constitution under the Storting's previous constitutional practice must henceforth also be considered under the new Article 93. It should hardly require further demonstration that the new Article 93 was never intended to disavow the Storting's previously clearly expressed understanding of the Constitution or decisions taken in accordance with it.”

It is clear that the earlier constitutional practice to which the committee referred included the 1951 NATO decision. That decision was the focus of the Foreign Affairs and Constitutional Committee's statement. As mentioned, there was scarcely any other practice in the form of decisions, apart from treaties on recognition and enforcement of civil judgments and the border customs cooperation with Sweden. However, the statement that the aim was to enable decisions for which the Constitution “previously provided no authority” can be read as meaning that Article 26, second paragraph, could still be used for the limited transfers of powers to which constitutional scholars had previously considered the Storting could consent under that provision, even though their limits were unclear.

In his article “Legal aspects of the question of making NATO a nuclear power”, Lov og Rett 1963, pages 207–217, Asbjørn Eide, then a university lecturer and later, among other positions, director of the Institute of Human Rights, opposed the view that Article 93 did not change how Article 26, second paragraph, could be used. He considered that Article 93 must henceforth always be applied according to its wording, including in cases previously thought capable of being dealt with under Article 26, second paragraph. [Page 10; HR-2021-655-P (case no. 21-001061SIV-HRET)] He interpreted the desire for clarity expressed in the preparatory works to Article 93 as having this meaning.

In his article “Article 93 of the Constitution”, Jussens Venner 1963, pages 73–111, Carl August Fleischer, then a university lecturer and later a professor, expressed the view that Article 93 did not exhaustively regulate every situation in which an international organisation could make directly effective decisions. However, he considered that earlier law, which was unclear and therefore unsuitable as a criterion, could not determine the boundary either. Instead, it was necessary to rely on “a reasonable interpretation of Article 93 itself and the other rules of the Constitution”, although earlier practice could be relevant in that context; see page 89. In his view, the decisive question should be whether the transfer of powers was of a “sufficiently intrusive nature”.

In his view, the reason for interpreting Article 93 restrictively in this way was that its criterion was “rather formal”. Whether a transfer was intrusive had to be decided through an overall assessment, taking account not only of more formal factors relating to the organisation's structure and the legal effects of the supranational decisions it could adopt, but also of more substantive factors, such as the actual risk of decisions contrary to Norwegian interests and the extent of the powers transferred; see page 93.

In “The EC and the Constitution”, Jussens Venner 1990, pages 196–210, Professor Torstein Eckhoff agreed, at pages 198–199, that provisions directly effective in Norway could be so limited in their intrusiveness that “using Article 93 would be unnecessary fuss”. In Eckhoff's view, the boundary was a matter of judgment, in which the extent of the commitment, the degree of detailed control, and whether Norway had a veto within the organisation could be relevant factors. On transfers of legislative power, he observed that none had yet occurred, but that “it … [is] probably possible for this too to occur without using Article 93 if the questions involved are of limited importance”.

3.6 Approval of the EEA Agreement The boundary between Article 26, second paragraph, on the one hand and Articles 115 and 121—then still Articles 93 and 112—on the other arose in practice when the Storting considered the EEA Agreement. In Proposition to the Storting no. 100 (1991–1992), page 344, the Government took the position that “the strongest reasons” favoured requiring consent under Article 93. Its reason was that the accompanying agreement between the EFTA States establishing a surveillance authority and a court empowered the EFTA Surveillance Authority to issue orders directly to Norwegian undertakings and impose fines on them in enforcing the EEA Agreement's competition rules, subject to judicial review by the EFTA Court.

Article 56 of the EEA Agreement, concerning the allocation of competence between the Commission and the EFTA Surveillance Authority in competition cases, nevertheless meant, somewhat simplified, that the Commission, subject to review by the Court of Justice of the European Union, would continue handling the competition cases it had hitherto regarded itself as competent to handle under EU law. These cases could also involve Norwegian undertakings operating in the EU market. In the Government's view, the Commission and the Court of Justice could not be considered bodies of an “organisation to which Norway belongs or accedes”. Consequently, a transfer of powers to them could not be authorised under Article 93 of the Constitution. [Page 11; HR-2021-655-P (case no. 21-001061SIV-HRET)] A right to refuse enforcement of fines imposed by the Commission was negotiated, but Norway otherwise accepted that the Commission's competition decisions would have the force of res judicata. The Government regarded this form of direct effect as a transfer of powers “of limited intrusiveness”, since these undertakings, if they wished to operate in the EU market, would in any event have no choice but to comply: the decisions could be enforced throughout the rest of the EEA; see Proposition to the Storting no. 100 (1991–1992), pages 345–346. Any enforcement in Norway of Commission fines against non-Norwegian undertakings was likewise regarded as a transfer of powers of limited intrusiveness.

In the Government's view, this therefore fell below the threshold for using Article 93, allowing the powers to be transferred under Article 26, second paragraph. In Recommendation S no. 248 (1991–1992), page 84, the majority—all members except those of the Centre Party, Socialist Left Party and Progress Party—confined itself to pointing to the powers transferred to the EFTA Surveillance Authority and EFTA Court, observing that “[i]n all other respects, the EEA is an agreement under international law”. On page 86, the Progress Party advocated Norwegian EU membership and did not comment on transfers of powers. On page 87, the minority comprising the Socialist Left Party and Centre Party stated that it could not see how “the Government can simply assert that no authority under the Constitution is needed” for transferring powers to the Commission and Court of Justice merely because Norway had declared Commission fines against Norwegian businesses unenforceable.

The minority further pointed out that “if Article 93 of the Constitution prevents adoption of the EEA Agreement”, an ordinary constitutional amendment under the then Article 112 was required. The obstacle to using Article 93 would in that event be the condition that Norway belong to the organisation. However, the question of principle whether Articles 93 and 112 could at all be understood as having a “lower boundary” excluding transfers of limited intrusiveness was not raised. The minority's reasoning appears instead to assume, without saying so, that the powers transferred to the EU bodies were more than of limited intrusiveness.

In this connection, the same minority raised the possibility that competition rules in the EU and EFTA parts of the EEA could develop differently if the EFTA countries declined to incorporate new EU rules into the EEA Agreement through decisions of the EEA Joint Committee. Proposition to the Storting no. 100 (1991–1992), page 347, mentioned this possibility as a “practical problem” if the Commission adopted decisions concerning Norwegian undertakings on the basis of EU rules. As the Supreme Court will discuss in sections 5.8 and 6, a fairly similar issue arises with the fourth railway package. The proposition does not make entirely clear whether the Government also regarded this as a constitutional problem and, if so, how serious it was in relation to the doctrine of transfers of powers of limited intrusiveness. The observation does, however, appear in the chapter on constitutional issues, in the discussion of powers transferred to the Commission in competition cases. The Government merely observed that such a situation was “extremely unlikely” to arise. The minority, which understood the Government to mean that the rules had to be identical in the EU and EFTA parts of the EEA to avoid conflict with Article 93 of the Constitution, sought further clarification, but its request was unsuccessful.

Norwegian participation in the EEA thus rested on the assumption that Article 93/115 of the Constitution had to be understood as having a “lower boundary” excluding transfers of powers of limited intrusiveness, and that Article 26, second paragraph, could suffice even for such transfers to an international organisation to which Norway did not belong. [Page 12; HR-2021-655-P (case no. 21-001061SIV-HRET)] This view was accepted by a majority representing more than three-quarters of the Storting. 3.7 Subsequent parliamentary practice Since the EEA Agreement entered into force, the Storting has considered the use of Article 26, second paragraph, several times in connection with new transfers of powers. As far as the Supreme Court has been able to establish, the following cases are involved:

In 2007, the Storting considered Norway's accession to the 1973 European Patent Convention, as amended in 2000. This convention does not concern Norway's relationship with the EU. It transfers administrative powers by giving the European Patent Office's (EPO's) examination of patent applications and grant of patents direct effect in Norway. It also transfers some legislative power to the EPO's Administrative Council to make certain amendments to the convention. In Proposition to the Storting no. 53 (2006–2007), page 33, the Government proceeded on the basis that the transfer did not require a decision under Article 93. The criterion “of limited intrusiveness” was not used. There was disagreement on accession—the Christian Democratic Party opposed it—but this appears to have concerned the possibility of patenting biotechnological inventions; see Recommendation S no. 253 (2006–2007). The recommendation shows that the committee had noted the transfer-of-powers issue, but contains no criticism of giving the Storting's consent under Article 26, second paragraph, of the Constitution.

Transfers of powers were also discussed in connection with Norway's participation in Schengen cooperation. The Storting considered Norwegian Schengen participation twice, in 1997 and 1999. This was because Schengen cooperation, previously outside the EU framework, was integrated into EU cooperation in 1999, necessitating a new treaty on Norwegian and Icelandic participation. In Proposition to the Storting no. 42 (1996–1997), the Jagland Government stated that the agreement did not transfer powers to an international body in a way raising the question of Article 93/115, and that its rules on cross-border police pursuit could be adopted under Article 26, second paragraph. In Recommendation S no. 229 (1996–1997), a minority comprising the Socialist Left Party, Centre Party and Christian Democratic Party considered the constitutional questions insufficiently examined and sought postponement.

When the matter was next considered, a reference group of five lawyers was asked to examine the constitutional questions. Their views appear in an appendix to Proposition to the Storting no. 50 (1998–1999), submitted by the first Bondevik Government. None opposed in principle the doctrine that transfers of powers of limited intrusiveness could be made under Article 26, second paragraph, although some considered Schengen cooperation to lie in a grey area as to what that provision permitted. Recommendation S no. 147 (1998–1999) records disagreement on whether Article 26, second paragraph, supplied sufficient authority: the Socialist Left Party and Centre Party members opposed that view. However, the minority's position does not appear to have rested on rejection of the doctrine itself in principle. Participation in Schengen cooperation was thus approved under Article 26, second paragraph.

In 2003, the Storting consented to Norway's ratification of a 1997 protocol to the International Eurocontrol Convention relating to Cooperation for the Safety of Air Navigation of 13 December 1960. The protocol empowered Eurocontrol to adopt regulatory measures necessary to develop and operate a common European air traffic flow management system. [Page 13; HR-2021-655-P (case no. 21-001061SIV-HRET)] This included powers to adopt decisions directly affecting aviation undertakings and air traffic services. Proposition to the Storting no. 34 (2002–2003), page 9, stated that the transfer was so limited in scope and intrusiveness that the Storting could consent under Article 26, second paragraph. In Recommendation S no. 116 (2002–2003), the Foreign Affairs Committee unanimously supported the proposal without commenting on the voting procedure.

The other cases concern incorporating EU legal acts into the EEA Agreement. Apart from one involving a transfer of legislative powers by both the EU and the EFTA countries to the International Organisation of Vine and Wine, they concern cases where the Commission or newly established EU agencies have been empowered to adopt decisions directly effective in the Member States, often combined with powers to impose fines for non-compliance. The transfer has usually, but not always, been structured so that the EFTA Surveillance Authority adopts decisions for the EFTA countries, on the assumption that these will broadly mirror decisions on the EU side.

Direct transfers of powers to the European Aviation Safety Agency (EASA) have been considered on three occasions. Here, powers were transferred directly to EASA. On the basis of Proposition to the Storting no. 44 (2004–2005), EASA was empowered to adopt type-certification decisions and airworthiness directives—a form of emergency regulation for particular aircraft types or components—with direct effect on private persons and entities. The Court of Justice of the European Union may hear disputes between Norwegian persons or entities and EASA.

Page 6 of the proposition states that participation in EASA would not entail a transfer of legislative power. It emphasised that implementing provisions adopted by the Commission would have to be approved by the EEA Joint Committee to become binding on the EEA/EFTA States. “However”, it continued, Norwegian participation in EASA would involve some transfer of judicial and administrative powers. The apparent assumption was therefore that EASA would not adopt decisions affecting aviation in the EFTA countries on the basis of EU rules before those rules became part of the EEA Agreement, or alternatively that any such decisions would not bind the EFTA countries insofar as they conflicted with the EEA rules still in force. Page 7 of the proposition proceeded on the basis that consent could be given under Article 26, second paragraph. The Transport and Communications Committee and the Foreign Affairs Committee made no observations; see Recommendation S no. 164 (2004–2005).

The next occasion primarily concerned empowering the Commission, at EASA's request, to impose financial penalties and periodic penalty payments on national companies for breaches of conditions in EASA's rules and individual authorisations. There was also a minor extension of EASA's certification powers, with little effect on Norwegian operators. On the EFTA side of the EEA, the sanctioning powers themselves were to be vested in the EFTA Surveillance Authority. The proposition discussed fairly thoroughly whether the transfer represented by the new sanctions could be regarded as of limited intrusiveness; see Proposition 27 S (2012–2013), pages 6–8. The assessment relied on an opinion of 18 January 2010 from the Ministry of Justice's Legislation Department. The Department had some doubt whether the transfer was of limited intrusiveness, since it concerned imposing sanctions. That doubt was conveyed on page 7 of the proposition: “The nature of the power suggests that its transfer cannot be regarded as ‘of limited intrusiveness’.” Nevertheless, both the Transport and Communications Committee and the Foreign Affairs and Defence Committee assumed, without commenting on this doubt, that the Storting could consent under Article 26, second paragraph; see Recommendation 146 S (2012–2013). [Page 14; HR-2021-655-P (case no. 21-001061SIV-HRET)]

The third occasion concerned transferring powers to inspect third-country operators and grant them safety authorisations from individual EU/EEA Member States to EASA. Most importantly, EASA assumed responsibility for the aviation safety assessment of third-country operators wishing to fly to, from or within Norway. The Norwegian Civil Aviation Authority would nevertheless retain the final say on traffic permits for such operators. The matter was submitted to the Foreign Affairs and Defence Committee. Its Centre Party and Socialist Left Party members opposed interpreting the Constitution as permitting consent under Article 26, second paragraph, to “minor surrenders of sovereignty”. The minority stressed that such a surrender to EASA could not be based on Article 115 either, since EASA was an EU body and that provision required Norwegian membership of the organisation. This was thus the first occasion on which opposition in principle to the doctrine of transfers of powers of limited intrusiveness itself became apparent.

Proposition 123 S (2014–2015) stated that consent could be given under Article 26, second paragraph, and the Transport and Communications Committee adopted that position in Recommendation 390 S (2014–2015). The Centre Party committee member endorsed the observation by the Centre Party and Socialist Left Party members of the Foreign Affairs and Defence Committee. In several other, partly later cases presented to the Storting as transfers of powers of limited intrusiveness that could be approved under Article 26, second paragraph, the relevant committee nevertheless unanimously endorsed the procedure without further comment. These were: • Recommendation S no. 246 (2007–2008) on the so-called REACH Regulation establishing a system for registering and evaluating chemicals. This transferred some administrative powers to a new European Chemicals Agency (ECHA), in whose governing bodies Norway could participate without voting rights; see Proposition to the Storting no. 49 (2007–2008), page 4.

• Recommendation 86 S (2012–2013) on a regulation empowering the Commission to approve applications to use processes for recycling plastic materials intended to come into contact with food. • Recommendation 191 S (2012–2013) on regulations whereby the EU and the EFTA countries in the EEA transferred legislative powers to the International Organisation of Vine and Wine (OIV). • Recommendation 94 S (2013–2014) on a regulation empowering the EFTA Surveillance Authority to recognise organisations competent to monitor timber-trading undertakings, to prevent the marketing of illegally harvested timber in the EEA. • Recommendation 156 S (2013–2014) on a regulation concerning the marketing and use of certain biocidal products.

• Recommendation 270 S (2014–2015) on a regulation establishing a legal framework for a European Research Infrastructure Consortium. [Page 15; HR-2021-655-P (case no. 21-001061SIV-HRET)] • Recommendation 168 S (2017–2018) on a regulation concerning the issue of security certificates in type-approval of tachographs. • Recommendation 41 S (2018–2019) on regulations concerning CO₂ emissions from cars.

In 2017, the Storting consented to incorporating into the EEA Agreement a regulation empowering the EFTA Surveillance Authority to impose financial penalties on pharmaceutical undertakings for certain breaches of obligations relating to marketing authorisations. This is often called the Paediatric Regulation case. In Proposition 127 LS (2016–2017), the Government considered this transfer of powers to be of limited intrusiveness. The majority supported the Government's proposal in Recommendation 370 S (2016–2017).

The Centre Party member could “not support Norway surrendering sovereignty” to the Surveillance Authority, but did not discuss the constitutional issue further. In Recommendation 278 L (2017–2018) on a new Personal Data Act, page 12, the Justice Committee's Centre Party and Socialist Left Party members criticised the planned transfer of powers to the European Data Protection Board, subject to review by the Court of Justice, without decisions for Norway being adopted by the EFTA Surveillance Authority; see pages 13–14. This was not, however, directly connected to the doctrine of transfers of powers of limited intrusiveness, or justified on the ground that direct transfers to an EU body would always be unconstitutional. The Centre Party criticised submitting the bill to the Storting before the EEA adaptations to the new General Data Protection Regulation had been finally adopted by the EEA Joint Committee. Among other things, it pointed out that the Government's arguments for the Storting's approval of incorporation under Article 26, second paragraph, might then prove untenable. The criticism was briefly repeated in Recommendation 279 S (2017–2018) on consent to incorporating the General Data Protection Regulation into the EEA Agreement.

In the case concerning incorporation of the so-called third energy market package, also known as the ACER case, the choice between Article 26, second paragraph, and Article 115 was discussed fairly extensively. An overview of the powers being transferred appears in the Supreme Court's plenary ruling HR-2021-417-P, paragraphs 21–23. In Proposition 4 S (2017–2018), pages 27–28, the Government considered the transfer to be of limited intrusiveness. This rested on opinions from the Ministry of Justice's Legislation Department, which elaborated on and maintained that position in a subsequent letter to the Storting dated 27 February 2018. A majority agreed in Recommendation 178 S (2017–2018). A minority comprising the Centre Party and Socialist Left Party members argued that the Storting's consent had to be given under Article 115, referring among other things to law professors who had expressed that view in the press. The minority further stated that future extensions and amendments to the rules might “raise new challenges concerning the surrender of sovereignty, in ways therefore defined as more than ‘of limited intrusiveness’”; see page 13.

Reference was also made to these parties' earlier criticism of the application of the doctrine of transfers of powers of limited intrusiveness. When new rules on financial market supervision were incorporated into the EEA Agreement, the procedure in Article 115 of the Constitution was followed. The powers transferred included authorising the EFTA Surveillance Authority to prohibit or restrict certain financial activities temporarily, and to impose periodic penalty payments and financial penalties; see Proposition 100 S (2015–2016), page 59. The Government recommended using Article 115 because the transfer of powers was more than of limited intrusiveness.

The Storting agreed; see Recommendation 382 S (2015–2016). [Page 16; HR-2021-655-P (case no. 21-001061SIV-HRET)] Nevertheless, the issue was debated. One question was whether there was any principle allowing transfers of powers of limited intrusiveness without using Article 115: on page 3 of the recommendation, the Centre Party repeated its earlier rejection of this doctrine. Another was whether Article 115 could authorise the proposed transfer at all, since, in the view of the Centre Party, Socialist Left Party and Christian Democratic Party, the EFTA Surveillance Authority's role was in reality confined to repeating decisions of EU bodies; see pages 8–9.

In 2019, in Proposition 127 LS (2018–2019), the Government proposed consent to incorporating a regulation on benchmarks into the EEA Agreement. These are various indices used as reference values for financial instruments and contracts, or to measure investment fund performance. Such indices are managed by separate undertakings termed “administrators”. The regulation would empower one of the EU's financial supervisory agencies to withdraw the recognition of administrators located outside the EEA, with the result that Norwegian undertakings could no longer use their services.

Page 16 of the proposition characterised this as an indirect transfer of powers to the financial supervisory agency, which the Government considered to be of limited intrusiveness. In Recommendation 36 S (2019–2020), the Finance Committee's majority made no further comment, but a minority comprising the Red Party and Centre Party members stated that it was “neither necessary nor acceptable to surrender sovereignty once again to the EU and its financial supervisory authorities”. On the basis of this overview, it appears to the Supreme Court that Article 26, second paragraph, has been used 19 times to consent to transfers of powers of limited intrusiveness since approval of the EEA Agreement. In one further case, concerning participation in the EU system of financial market supervision, Article 115 was used. In that case and the third EASA case, a minority opposed in principle the possibility of consenting to any transfer of powers under Article 26, second paragraph. In four other cases—the two Schengen cases, the new Personal Data Act case and the ACER case—the disagreement appears rather to have concerned the specific assessment of whether the transfer would be of limited intrusiveness.

In two cases, concerning the Paediatric Regulation and the Benchmarks Regulation, the minority did not address the constitutional issue but considered the transfer undesirable in any event. In the remaining 12 cases, the entire Storting supported consent to transfers of powers under Article 26, second paragraph. 3.8 Further discussion of transfers to EU bodies The transfers of powers to EASA, the European Chemicals Agency, the Commission in competition cases and plastic-packaging recycling, and the European Data Protection Board were transfers to EU bodies. In the first two EASA cases and the cases concerning the Chemicals Agency and plastic packaging, this was accepted unanimously by the Storting. As presented to the Storting, however, these cases did not raise the question of the agencies potentially applying new EU rules before they became part of the EEA Agreement.

In Report to the Storting 5 (2012–2013), on the EEA Agreement and Norway's other agreements with the EU, submitted by the second Stoltenberg Government, the use of Article 26, second paragraph, to consent to transfers of powers of limited intrusiveness was described as “settledLongus usus constitutional practice” on page 44. However, pages 45–46 pointed out that the EU's increasing use of agencies created “challenges for the two-pillar system of the EEA Agreement”: the system whereby powers concerning the EFTA countries within the EEA are exercised through EFTA bodies, rather than EU bodies. [Page 17; HR-2021-655-P (case no. 21-001061SIV-HRET)] The report also stressed that EU arrangements could not always be fitted into that system, and that resource considerations or other reasons could make it inappropriate to give the EFTA Surveillance Authority the same powers as the Commission. In this connection, the Government stated that balanced and effective cooperation required “a pragmatic approach by all contracting parties”, and that it would “assess the consequences of the emergence of EU agencies and supervisory authorities for participation, processes and policy formation in Norway, and the approach that would best safeguard Norwegian interests in dealings with these bodies”.

Recommendation 227 S (2012–2013), considering Report to the Storting 5 (2012–2013), made no further comment on the description of using Article 26, second paragraph, for transfers of powers of limited intrusiveness as “settled constitutional practice”. On page 10, however, the Foreign Affairs and Defence Committee unanimously discussed the EU agencies, stating that they “represent an important opportunity for Norway to participate in cooperation”, while their increased use presented EEA cooperation “with certain challenges of principle”.

The committee “note[d]” that the Government would examine the consequences more closely and asked it to “consider whether there might be a basis for an institutional solution consistent with the two-pillar system of the EEA Agreement”. 3.9 Recent legal scholarship Recent legal scholarship has raised objections in principle to the use of Article 26, second paragraph, to consent to transfers of powers of limited intrusiveness. Professor Eirik Holmøyvik has been particularly critical in “Article 93 of the Constitution and the doctrine of transfers of powers ‘of limited intrusiveness’ in light of recent constitutional practice”, Lov og Rett 2011, pages 447–471, and “‘Settled constitutionalLongus usus practice’? The Constitution and Norway's agreements on transfers of sovereignty”, Nytt norsk tidsskrift 2013, pages 117–125. His views also appear in the observations he and Professor Christoffer Conrad Eriksen submitted to the Supreme Court in this case.

The main criticism is that a criterion such as “of limited intrusiveness” is unsuitable as a standard for choosing between different decision-making procedures. This is particularly so because the factors applied in practice are in part highly discretionary, and only a simple majority in the Storting is needed to decide whether a qualified majority is required for the substantive decision. This undermines the minority protection Article 115 is intended to secure. It is also warned that the doctrine can be used to circumvent Article 115's condition that Norway belong or accede to the organisation receiving the powers. Furthermore, as practised, with each case assessed separately, the doctrine may produce a cumulative effect over time: several smaller transfers may together amount to a transfer that would have required a decision under Article 115 or constitutional amendment had it been made all at once.

Although Holmøyvik acknowledges that the practice of using Article 26, second paragraph, for transfers of powers of limited intrusiveness is now longstandingLongus usus, he disputes that it can be decisive. He argues that the wording provides no support for the doctrine, and that state practice and legal scholarship before 1962 do not justify reading in a general exception for transfers of powers of limited intrusiveness. [Page 18; HR-2021-655-P (case no. 21-001061SIV-HRET)] In “Article 1 of the Constitution and the EU—with particular reference to the implementation of decisions by the European Commission and the EU energy agency ACER”, Lov og Rett 2018, pages 170–190, Professor Peter Ørebech likewise appears critical of using Article 26, second paragraph, to consent to transfers of powers, emphasising their cumulative effect.

In “Sovereignty and cooperation—the Constitution's limits on delegation of state power”, Kritisk Juss 2016, pages 3–37, Professor Tarjei Bekkedal criticised the doctrine of transfers of powers of limited intrusiveness, among other reasons because he considered it to lack a clear legal foundation and its criterion to be unclear and to give excessive power to the Ministry of Justice's Legislation Department. The article's main argument, however, is that the Storting may delegate powers extensively to international bodies through ordinary legislation. On that approach, the doctrine of transfers of powers “of limited intrusiveness” becomes superfluous. In “Sovereignty and homogeneity: Norway's participation in the EU financial agencies (I)”, Lov og Rett 2018, pages 131–157, Bekkedal and executive officer Ingrid Hertzberg advocate Norwegian participation in the EU's financial market supervision arrangements in this way, without using Article 115 of the Constitution.

The doctrine has also been defended as the law in force. In “The doctrine of transfers of powers ‘of limited intrusiveness’—constitutional self-deception or sensible constitutional interpretation”, Nytt norsk tidsskrift 2013, pages 416–422, Fredrik Sejersted, then a professor, argued that the doctrine had developed within legitimate constitutional methodology, had been applied fairly restrictively, and was supported by good reasons: many cases concerning transfers of powers were in practice much less significant than numerous other matters that the Storting decided by simple majority.

Professor Per Stavang also appears to accept the doctrine of transfers of powers of limited intrusiveness as the law in force; see “The EEA Agreement, the EEA institutions and Article 93 of the Constitution”, Jussens Venner 1993, pages 213–246. 3.10 The Supreme Court's view on whether Article 26, second paragraph, provides sufficient authority to consent to transfers of powers of limited intrusiveness In cases concerning the constitutionality of decisions already taken by the Storting, the Supreme Court has held that the intensity of review varies according to the type of constitutional provision involved. This was first expressed in the plenary judgment reported in Rt-1976-1 (the Kløfta case), where the Supreme Court stated at pages 5–6:

“There are, however, differing views on what is required before the courts may set aside a statute as unconstitutional. I see no reason to express a general view on this. The answer will depend to some extent on the constitutional provisions concerned. Where they protect individuals' personal liberty or security, I consider that the Constitution must carry considerable force. Where, on the other hand, constitutional provisions govern the working methods or respective powers of the other branches of government, I agree with the justice delivering the leading opinion in the plenary case reported in Rt-1952-1089, particularly page 1098 (the whaling levy case), that the courts must to a large extent respect the Storting's own view. Constitutional provisions protecting economic rights must in this respect occupy an intermediate position.”

19 HR-2021-655-P (case no. 21-001061SIV-HRET) The Supreme Court need not examine this further now that the Storting has requested its view before any decision is taken. In answering, the Court must apply ordinary legal methodology. Such methodology commonly gives weight to established practice as to how the question concerned should be resolved. This also applies to the legal relations of the highest organs of the State; see Skoghøy, Law and Legal Application, 2018, pages 41 and 209. Here, that means the Storting's own practice.

As to the Supreme Court's view on whether Article 26, second paragraph, may be used to consent to transfers of powers of limited intrusiveness, the starting point is that, as noted in section 3.2, the wording does not answer the question. However, it does not preclude such an interpretation. The Supreme Court observes that, since approval of the EEA Agreement in 1992, there has developed a relatively extensiveLongus usus parliamentary practice whereby transfers of powers of limited intrusiveness may be made using Article 26, second paragraph. Reference is made to sections 3.6 and 3.7 above.

As sections 3.3 and 3.4 show, this practice rests on a widespread view in constitutional scholarship and in the Storting, both before and after adoption of what is now Article 115, that Article 26, second paragraph, could be used for certain forms of transfer of powers. The policy rationale is that the choice between a simple and a qualified majority should be proportionate to the matter's actual significance. Transfers of powers may in substance be of limited intrusiveness compared with many international obligations that can undoubtedly be accepted by simple majority under Article 26, second paragraph. Examples of the latter include obligations requiring legislative amendments with major legal consequences for private persons and entities.

Views on how extensive a transfer may be before it ceases to be of limited intrusiveness have probably evolved since the rather vague ideas about using Article 26, second paragraph, before the adoption of the then Article 93 in 1962. However, the decisions have rested on recommendations from governments of differing party compositions, and most were adopted unanimously and without debate on this issue in the Storting. Use of Article 26, second paragraph, has occasionally been criticised, but rarely on purely principled grounds: the debate has instead concerned whether the particular transfer was of limited intrusiveness. No party in the Storting has consistently opposed consenting to transfers of powers under Article 26, second paragraph, on the ground that the provision does not authorise them.

In the Supreme Court's view, such aGeneral constitutional custom practice must carry considerable weight when the Constitution's wording gives no clear answer to a question concerning the working methods or respective powers of the other branches of government. Existing practice cannot, however, be unconditionally decisive; it must be weighed against arguments for a different solution. The arguments against the doctrine allowing transfers of powers of limited intrusiveness by simple majority also carry substantial weight. When deciding whether a decision may be taken by a simple majority or requires a qualified majority, it is advantageous for the criterion governing that choice to involve as little discretion as possible.

This prevents use of an incorrect procedure, whether a simple majority can decide that it is sufficient or some form of “minority veto” were envisaged, whereby a minority could demand a qualified majority. Clear criteria avoid doubt and debate. [Page 20; HR-2021-655-P (case no. 21-001061SIV-HRET)] A rule requiring a qualified majority for even the smallest transfer of powers, leaving no room to assess the matter's actual importance, could nevertheless appear highly formalistic. It is also relevant that the practice has enjoyed broad support in the Storting. In other words, it is not the result of a simple majority composed of particular political parties systematically using Article 26, second paragraph, to adopt decisions that other parties could and would have consistently prevented had a qualified majority been required.

Another objection concerns what may be called the cumulative effect: repeated transfers of powers, each regarded as “of limited intrusiveness”, may ultimately amount to a transfer that would have required a qualified majority if presented as a whole. However, the doctrine does not prevent considering, in an individual case, whether the “boundary” has now been crossed. As the Supreme Court understands parliamentary practice, it does not preclude this. The Court considers that such a boundary must also exist for incremental transfers of powers. It does not follow, however, that the assessment must rest on more or less reliable assumptions about what the next step might be. It must primarily be made in relation to the particular transfer for which consent is sought.

Thus far, the Supreme Court considers that the counterarguments cannot outweigh the longstanding parliamentary practiceLongus usus and the other legal sources supporting it. As mentioned in section 3.1, a particular aspect of the fourth railway package is that powers are transferred directly to an EU body, rather than an EFTA body: the European Union Agency for Railways, abbreviated ERA. The question is whether consent under Article 26, second paragraph, is in any event insufficient for such a transfer. One argument for its insufficiency is that the transfer could circumvent the condition in Article 115 that Norway belong to the organisation receiving the powers.

Given that Article 26, second paragraph, concerns precisely transfers of powers of limited intrusiveness, there is less need to require Norwegian membership of the organisation receiving the powers than when the transfer is more extensive. The Supreme Court also notes that the Storting has previously accepted direct transfers of powers to the Commission in competition cases and concerning recyclable plastic packaging, to EASA, to the European Chemicals Agency and to the European Data Protection Board. Parliamentary practice therefore exists for such transfers too. Although it is not particularly extensive, and the transfers in competition cases and the third transfer to EASA were not unanimous, this practice must also be given weight.

21 HR-2021-655-P (case no. 21-001061SIV-HRET) It is also relevant that the development of specialised EU agencies with supranational powers within the EU, and the challenges this creates for the two-pillar system of EEA cooperation, were discussed in general terms by the Storting in Recommendation 227 S (2012–2013); see section 3.8 above. Although the parliamentary committee unanimously agreed with the Government that this presented a challenge, and asked it to investigate possible solutions consistent with the two-pillar system, no member suggested that such transfers of powers fell outside what could be accepted under Article 26, second paragraph, of the Constitution.

The Supreme Court therefore concludes that approving transfers of powers to EU bodies under Article 26, second paragraph, cannot in itself be regarded as unconstitutional. However, transfer to an organisation of which Norway is not a member is a factor that may, in a specific assessment, weigh against characterising the transfer as of limited intrusiveness. The Court returns to this in section 4 and, specifically for the fourth railway package, in section 6. 4 Criteria for determining whether a transfer of powers is of limited intrusiveness In practice, a set of criteria has graduallyLongus usus developedLongus usus for assessing whether a transfer of powers is of limited intrusiveness.

These criteria appear particularly in various propositions and opinions of the Ministry of Justice's Legislation Department in the cases mentioned in section 3.7. Insofar as the Storting endorsed those assessments without comment, it too must be regarded as having based its practice on these criteria. The same applies where a minority disagreed that the transfer was of limited intrusiveness without adopting an alternative set of criteria. They were summarised as follows in a Legislation Department opinion dated 30 May 2017, repeated in its letter of 25 August 2020 to the Ministry of Transport concerning the fourth railway package:

“According to practice, relevant factors include the precise nature of the powers transferred, the extent of the transfer and, in that connection, whether it concerns a specific and limited subject area. It is also relevant whether the transfer is based on reciprocity and participation on equal terms. Practice has also attached weight to the extent to which Norwegian authorities can remedy adverse effects of the transfer. Account must also be taken of the nature of the social and political interests affected. In borderline cases, the Storting's position in the individual case may determine whether Article 26 of the Constitution can be used.”

As this shows, the criteria are partly practical and political—the nature of the social and political interests affected—and partly more formal and legal, typically the nature and extent of the powers transferred. The overall assessment will thus involve a “mixed” judgment. The criteria appear to rest on the broader views previously advanced in the articles by Fleischer and Eckhoff mentioned above. They accord with the policy justification for interpreting the Constitution as allowing consent to transfers of powers of limited intrusiveness by a simple majority under Article 26, second paragraph.

The Supreme Court accordingly adopts these criteria, while observing that they may overlap in practice. The nature of the social and political interests affected will, for example, often be connected with the nature and extent of the powers transferred. Future cases may also require the criteria to be developed or supplemented. [Page 22; HR-2021-655-P (case no. 21-001061SIV-HRET)] As mentioned in section 3.10, the issue takes on a particular character if powers are transferred to an organisation of which Norway is not a member. The scope for regarding the transfer as of limited intrusiveness will then naturally be narrower than if the same powers were transferred to an organisation of which Norway was a member. Norway's influence would be greater in such organisations. This suggests that how closely Norway's position in practice resembles ordinary membership will matter in the specific assessment. The right to participate and speak in various decision-making and advisory forums will be relevant, even if it does not include voting rights.

In the Supreme Court's view, no general limits on the types of powers that may be transferred can be based on purely formal criteria—for example, a rule that powers to adopt general rules could never be transferred to an organisation of which Norway is not a regular member. The degree of discretion enjoyed by the international body in taking decisions is nevertheless relevant. Power to adopt general rules often involves greater discretion than power to decide individual cases.

The actual significance for society of the particular transfer of powers must carry considerable weight, including in transfers to EU bodies. This must be assessed specifically by reference to the social sector involved, how narrowly defined the powers are, and whether their exercise largely involves professional or otherwise limited discretion, rather than broader assessments of societal interests. The opportunities available to Norwegian authorities to intervene if decisions prove to have unintended adverse effects will also be relevant.

5 Further discussion of the fourth railway package 5.1 Overview Through three railway packages comprising several directives and regulations, adopted in 2001, 2004 and 2007 respectively, the EU has developed a relatively extensive regulatory framework for the railway sector. It includes technical and safety standards, common competence requirements, and provisions on interoperability, competition, market access and passenger rights. The entire framework has been incorporated into the EEA Agreement. In 2016, the EU adopted a fourth railway package comprising six legal acts, both directives and regulations. All are updated versions of earlier acts incorporated into the EEA Agreement and implemented in Norwegian law; see Proposition 101 LS (2019–2020), pages 12–13. However, the fourth railway package also contains several changes.

One criticism of the rules under the first three packages was that undertakings operating in several countries—both railway undertakings and railway equipment manufacturers—had to deal with different national safety authorities in parallel procedures. These could be protracted and sometimes result in deadlock. To remedy these problems, ERA, the EU railway agency established in 2004 in connection with the second railway package, has been given additional tasks; see Proposition 101 LS (2019–2020), page 59. It is these tasks that have raised the transfer-of-powers issue in connection with the fourth railway package. [Page 23; HR-2021-655-P (case no. 21-001061SIV-HRET)]

In its review of the directives and regulations in Proposition 101 LS (2019–2020), pages 53–55 and 57, the Ministry of Transport identified five instances of transfer of powers in the fourth railway package; see also the Legislation Department's letter of 25 August 2020 to the Ministry of Transport: • Powers transferred to ERA to issue, restrict and revoke so-called single safety certificates, and authority for ERA to conduct visits and inspections at applicants' premises during the application process: Article 10 of Directive (EU) 2016/798 (the Safety Directive) and Article 14 of Regulation (EU) 2016/796 (the ERA Regulation). • Powers transferred to ERA to issue, amend and revoke vehicle authorisations under Articles 21 and 24 of Directive (EU) 2016/797 (the Interoperability Directive) and Articles 20 and 21 of the ERA Regulation.

• Introduction of a prior approval procedure before invitations to tender for equipment for a standardised signalling and traffic management system known as ERTMS, under Article 19(2) of the Interoperability Directive. • Powers transferred to the Court of Justice of the European Union to review ERA decisions: Article 63 of the ERA Regulation. • ERA's power to adopt decisions on the basis of supplementary rules adopted by the Commission before those rules have become part of the EEA Agreement. Thus, powers are transferred directly to ERA and—so far as ERA may base its decisions on Commission rules not yet incorporated into the EEA Agreement—indirectly to the Commission. ERA's decisions will be subject to judicial review by the Court of Justice.

ERA is organised like other comparable EU agencies, with a management board and various working groups. Norway participates in ERA's board and working groups, but without voting rights. This accords with establishedLongus usus practice for Norwegian participation in EU agencies. The Ministry of Transport has assumed that the new ERA Regulation does not change Norway's involvement in the agency's work; see Proposition 101 LS (2019–2020), page 56. Norwegian nationals will also be eligible for appointment as chair or members of a newly established Board of Appeal on the same terms as EU citizens. In this respect, Norway is thus on an equal footing with EU countries.

5.2 Safety certificates For a railway undertaking to obtain access to railway infrastructure in an EEA country, it must hold a safety certificate showing that it has a satisfactory safety management system and can comply with the relevant safety standards and rules. The fourth railway package introduces a single European safety certificate for railway undertakings, although its geographical coverage is limited to the area of operation—the Member States—specified in the application; see Article 10(2) of the Safety Directive. [Page 24; HR-2021-655-P (case no. 21-001061SIV-HRET)]

Single safety certificates are issued by ERA, which thereby assumes powers previously held by national safety authorities. ERA will thus adopt decisions directly effective in the Member States concerned. Under Article 10(5) of the Safety Directive, ERA may, when processing applications, conduct visits and inspections at the railway undertaking's sites, carry out audits and request supplementary information. However, the national safety authorities supervise the undertakings once a safety certificate has been issued; see Article 17 of the Safety Directive.

Where ERA has decision-making authority, it must cooperate with the national safety authorities of the countries covered by the authorisation; see Article 10(5)(b) of the Safety Directive. This is particularly to establish compliance with national rules relevant to the assessment in the particular case. The reason is that Member States remain entitled to adopt national rules within the limits of Article 8 of the Safety Directive. Cooperation between ERA and each national safety authority must be based on separate cooperation agreements; see Article 76 of the ERA Regulation.

The agency's processing of cases will also draw extensively on assistance from experts throughout the EEA. Where an undertaking wishes to use the railway network in only one Member State, the Directive allows the applicant to choose whether to ask that country's national safety authority or ERA to issue the safety certificate; see Article 10(8) of the Safety Directive. Only ERA may restrict or revoke a single safety certificate that it has issued; see Article 17(5) of the Safety Directive and Article 14 of the ERA Regulation.

Such a decision is taken at the request of the national supervisory authority; see Article 17(5) of the Safety Directive. Although national authorities cannot revoke or restrict certificates issued by ERA, they may temporarily restrict or suspend operations considered to pose a serious safety risk; see Article 17(6). ERA cannot overturn such a temporary decision, but must be informed and may request its amendment if it considers it disproportionate. The national authority nevertheless decides whether to comply with that request. Where a temporary decision has lasted three months and ERA still declines a request by the national safety authority to revoke or restrict the certificate concerned, the arbitration procedure described in section 5.5 below is initiated. If ERA's position prevails, the temporary decision must be lifted; see Article 17(5), second subparagraph.

As the Supreme Court understands it, ERA cannot impose financial penalties on Norwegian undertakings or respond to infringements otherwise than by revoking authorisations already granted. Article 30 of the Safety Directive requires Member States to lay down penalties for breaches of the national provisions implementing the Directive. It is proposed that the Norwegian Railway Authority should be able to impose financial penalties for breaches of the rules, and infringements of conditions arising from ERA decisions could in principle be punishable under section 22 of the Railway Act.

25 HR-2021-655-P (case no. 21-001061SIV-HRET) 5.3 Vehicle authorisations Under the recast Interoperability Directive, the power to issue authorisations to place rolling stock on the market and put it into service has largely been transferred to ERA. Here too, ERA's authorisations will be valid in all EEA States but limited to the area of use—one or more Member States—specified in the application. The national safety authorities of the countries concerned are also involved in the application process.

If the vehicle's area of use is to be limited to one or more networks within a single country, Article 21(8) of the Directive allows the applicant to ask that country's national safety authority to issue the vehicle authorisation. Only the authority that issued a vehicle authorisation may revoke or amend it; see Article 26 of the Interoperability Directive. This means that only ERA may restrict or revoke an EU vehicle authorisation. However, national safety authorities may here too adopt temporary measures in the event of a serious safety risk, under the same rules as apply to safety certificates; see Article 26(3) of the Interoperability Directive.

5.4 Prior approval of specifications for new ERTMS projects ERTMS stands for European Rail Traffic Management System. As mentioned, this is a standardised signalling and traffic management system intended to replace the many different national systems used in Europe. Before a tendering procedure for the development and installation of ERTMS equipment may be launched, ERA must check and approve the ERTMS specifications in the invitation to tender, to ensure full compliance with the relevant Technical Specifications for Interoperability, commonly called TSIs. The aim is to ensure harmonised deployment of ERTMS; see recital 47 of the Interoperability Directive.

5.5 Establishment of a Board of Appeal Article 55 of the ERA Regulation requires a separate Board of Appeal for ERA decisions. The appeals system is modelled on that applying in aviation under the EASA Regulation, Regulation (EU) 2018/1139, Article 108; see Proposition 101 LS (2019–2020), page 15. Under the proposed adaptations in the draft EEA Joint Committee decision, nationals of the EFTA States in the EEA may be appointed to the Board of Appeal on the same terms as EU nationals.

The Board of Appeal will consider applicants' appeals against ERA decisions on single safety certificates and vehicle authorisations. Where ERA and national safety authorities cannot agree on the application of national rules relevant to a case within ERA's competence, the national safety authority may also refer the matter to arbitration by the Board before ERA adopts its final decision; see Article 10(7) of the Safety Directive and Article 21(7) of the Interoperability Directive. Such arbitration will primarily be relevant where the national safety authority considers that applicable national requirements have not been met and the agency disagrees; see Proposition 101 LS (2019–2020), page 16. ERA must adopt a final decision consistent with the Board's determination in the arbitration; see Article 10(7) of the Safety Directive and Article 21(7) of the Interoperability Directive. [Page 26; HR-2021-655-P (case no. 21-001061SIV-HRET)] If the Board agrees with the national authority's negative assessment, the authorisation or safety certificate issued by ERA must exclude the part of the railway network to which that assessment relates.

As mentioned, disagreements between ERA and the national safety authority over whether there are grounds to revoke or restrict a single safety certificate or vehicle authorisation issued by ERA may also be referred to the Board of Appeal. Under Article 19(5) of the Interoperability Directive, the Board also considers appeals against ERA decisions on prior approval of ERTMS specifications. Where a national safety authority decides to grant a safety certificate or vehicle authorisation, neither ERA nor the Board of Appeal may review that decision.

5.6 Fees and charges Under Article 80 of the new ERA Regulation, ERA may collect fees and charges to cover the full costs of its services. 5.7 The Court of Justice of the European Union ERA decisions may be challenged before the Court of Justice by the person to whom the decision is formally addressed or whom it concerns “directly and individually”; see Article 263 of the Treaty on the Functioning of the European Union (TFEU). Article 63 of the ERA Regulation requires prior consideration by the Board of Appeal. ERA decisions cannot be reviewed by national courts.

5.8 The Commission's powers Proposition 101 LS (2019–2020), page 57, states that “[i]t is conceivable that ERA will adopt decisions based on rules adopted by the Commission before those rules have been incorporated into the EEA Agreement”, and that this “contains an element of transfer of powers”. The Supreme Court understands the proposition to refer in practice particularly to the adoption of common safety methods under the delegation provisions in Article 6 of the Safety Directive, and technical specifications for interoperability under the corresponding provisions in Article 5 of the Interoperability Directive. Authority to delegate such legislative powers—more akin, in the Norwegian context, to powers to make regulations—to the Commission follows from Article 290 TFEU, which provides that the Commission may be empowered to adopt rules that “supplement or amend certain non-essential elements of the legislative act”.

Article 6 of the Safety Directive describes common safety methods as explaining how safety levels, the achievement of safety targets, and compliance with other safety requirements are to be assessed. Under Article 2(11), read with Article 2(9), of the Interoperability Directive, technical specifications for interoperability are specifications to meet the “essential requirements” laid down in Annex III concerning matters such as safety, technical compatibility and universal accessibility of infrastructure. [Page 27; HR-2021-655-P (case no. 21-001061SIV-HRET)] Holmøyvik and Eriksen's observations to the Supreme Court also refer to Article 7 of the Safety Directive on the setting of “common safety targets”.

Under Article 3(5) of the Directive, these are minimum safety levels for the EU railway system as a whole and, “where possible”, for its different parts, such as the “system for” conventional trains, high-speed trains and long tunnels. The proposition does not discuss what practical significance, if any, this has for ERA's decisions on safety certificates and vehicle authorisations. The Supreme Court observes that these are minimum requirements, and that Article 7(7) leaves it to Member States to adopt requirements that must “at least” meet those minima within prescribed time limits.

6 The Supreme Court's view on whether Article 26, second paragraph, authorises consent to incorporating the fourth railway package into the EEA Agreement As previously mentioned, particular weight has been given to the following factors in assessing whether a transfer of powers is of limited intrusiveness: the nature and extent of the powers transferred; whether the transfer is based on reciprocity and participation on equal terms; whether Norwegian authorities can remedy possible adverse effects; and the nature of the social and political interests affected.

The Supreme Court applies the same factors here. As to the nature of the transfer, the central feature is the transfer of decision-making powers to ERA. Issuing and revoking safety certificates and vehicle authorisations, and approving specifications in invitations to tender for ERTMS equipment, would be characterised in Norwegian law as the exercise of administrative powers. The same applies to ERA's authority to conduct inspections during application processing and to charge fees for that processing.

As mentioned in section 5.8, the proposition states that ERA may adopt decisions under rules laid down by the Commission before those rules become part of the EEA Agreement. In its letter of 25 August 2020 to the Ministry of Transport, page 5, the Ministry of Justice's Legislation Department stated that “in that event, it [is] natural to speak of a form of transfer of legislative power (the power to make regulations)”. In a letter of 5 October 2020 to the Storting's Transport and Communications Committee, the Minister of Transport stated that it was “natural to regard this as part of the transfer of administrative powers to the agency in cases currently decided by the Norwegian Railway Authority”. In any event, the central issue is the possibility that rules may be applied in Norway through ERA decisions before becoming part of the EEA Agreement. The possibility that the Commission's legislative powers may have this effect weighs initially against regarding the transfer as of limited intrusiveness, but here too the actual effects it may have on society must be examined more closely.

The Court of Justice's power to review decisions of ERA, an EU body, derives from the decision-making powers transferred to ERA. The same applies to the powers of the newly established Board of Appeal, which may also act as an arbitral body in certain disputes between ERA and national railway safety authorities. Review of ERA decisions by national courts is presumably entirely out of the question. Decisions currently taken by Norwegian railway authorities and reviewable by Norwegian courts will thus in future be taken by ERA and reviewed by the Court of Justice. [Page 28; HR-2021-655-P (case no. 21-001061SIV-HRET)] There is no transfer of judicial power beyond this.

As mentioned in section 5.2, breaches of conditions set by ERA are intended to be subject to sanctions under the Railway Act. The general duty of loyalty in Article 3 of the EEA Agreement may be said to require Norwegian authorities to act against undertakings breaching ERA decisions in the same way as they act against comparable breaches of decisions by Norwegian authorities. The same would presumably apply fairly generally to transfers of administrative powers to international bodies insofar as those bodies do not themselves enforce their decisions.

This must therefore be regarded as a fairly ordinary consequence of transferring administrative powers. The criminal provision in section 22 of the Railway Act, moreover, applies to breaches of conditions laid down in or pursuant to that Act. Conditions imposed under EU rules not implemented in Norwegian law can hardly be said to have been imposed pursuant to the Act. Breaches of such conditions therefore cannot be punished in Norway. The fact that the transfer mainly concerns administrative powers to be exercised according to professionally delimited criteria supports regarding it as of limited intrusiveness. The possibility of ERA decisions under Commission rules not yet incorporated into the EEA Agreement points in the opposite direction.

In this connection, the Supreme Court notes that No to the EU's observations appear to assume that if the EU amends the basic Safety Directive itself, adopted by the European Parliament and Council, ERA will also apply the new directive with effect for Norway without waiting for the directives to become part of the EEA Agreement. However, the Supreme Court proceeds on the basis that consent to incorporating the fourth railway package is limited to the transfer of powers arising from the basic legal acts, including the Safety Directive, as they now stand and within the substantive limits they set. ERA's application of such new legal acts before their incorporation into the EEA Agreement will therefore have no direct effect in Norway unless the Storting adopts a new decision.

The central point regarding reciprocity and participation on equal terms is that powers are transferred to an EU body, with judicial review by another EU body, rather than to a body of an organisation to which Norway belongs, such as EFTA or the joint bodies at EEA level. Norway does have a representative on ERA's board, and Norwegian representatives participate in its various working groups, but unlike EU-country representatives they have no voting rights. This weighs against regarding the transfer as of limited intrusiveness. In a distinctly expert body such as ERA, however, the opportunity to express one's views on the same terms as other participants may have considerable practical significance. Norwegian nationals will also be eligible to serve as chair or members of the Board of Appeal on the same terms as EU nationals. Norway thus has the same right of participation in the Board of Appeal as EU countries.

As regards the possibility of remedying adverse effects of the transfer, such effects here would presumably consist of ERA adopting decisions with which Norwegian safety authorities disagreed, whether as too strict or too lenient. Here too, however, it is natural to emphasise Norwegian experts' participation in the decision-making processes: ERA does not take decisions without knowing Norwegian authorities' views. [Page 29; HR-2021-655-P (case no. 21-001061SIV-HRET)] More important, however, is the ability of national authorities to restrict or suspend temporarily operations regarded as posing a serious safety risk; see section 5.2 above. Proposition 101 LS (2019–2020), page 17, says the following about a situation in which ERA's view, rather than that of the national safety authority, prevails in arbitration:

“The Directive does not describe in greater detail what happens after such suspension of the national safety measures. Operations continuing in that event must be subject to ordinary supervision by national authorities, which must reassess, in light of the specific circumstances, whether the undertaking is operating safely.” For its part, the Supreme Court considers that it could be inconsistent with the duty of loyalty for Norwegian authorities to reintroduce temporary safety measures on grounds rejected by the arbitral body. On the other hand, the undertaking subject to the safety measure cannot thereafter be immune from continued supervision by Norwegian authorities, which must be able to intervene again if the relevant circumstances change.

It is natural to consider the extent of the transfer of powers together with the nature of the social and political interests affected. In the Supreme Court's view, these factors must carry the greatest weight in assessing whether the transfer can be regarded as of limited intrusiveness. The transfer primarily concerns issuing safety certificates and vehicle authorisations for railway operations. As regards safety certificates, it covers their issue to railway undertakings operating in Norway and other countries, or solely in Norway if those undertakings wish to obtain an ERA certificate. Vehicle authorisations are issued primarily to manufacturers of rolling stock, but also to railway undertakings, vehicle owners and certain others. Here too, however, it is possible to request only a Norwegian authorisation if operations will be confined to one or more networks in Norway. The transfer thus concerns a particular kind of authorisation that is necessary, but not sufficient, for railway operations, with in practice a fairly limited number of undertakings as potential addressees.

Some of these undertakings will in any event depend on such authorisations from ERA for their activities in other countries. Railway operations undoubtedly have great significance for society, and safety certificates and vehicle authorisations will be prerequisites for an undertaking to operate railways in Norway. As far as the Supreme Court can understand, however, these authorisations are, as mentioned, granted under rules already largely harmonised within the EEA, and the decisions are based on railway expertise rather than political considerations. Norwegian railway authorities will continue to supervise day-to-day compliance with rules and conditions.

As the Supreme Court understands it, the right to provide railway services on particular routes is a separate issue. Safety certificates issued by ERA confer no automatic right to offer such services on the Norwegian railway network. Lack of a certificate will indeed prevent such operations, but an undertaking intending to operate only in Norway may, as mentioned, seek approval from Norwegian authorities instead of ERA. [Page 30; HR-2021-655-P (case no. 21-001061SIV-HRET)] As far as the Supreme Court can see, the possibility of ERA adopting decisions under Commission rules before those rules become part of the EEA Agreement concerns detailed technical rules that supplement, in a limited way, more general rules forming part of that Agreement and already largely harmonised through earlier railway packages. Under Norwegian administrative practice, rules of this kind would undoubtedly be made by regulation; that is probably also largely true of the more general rules concerned. The societal consequences in Norway of ERA potentially adopting decisions directly effective in Norway on the basis of such Commission rules before their incorporation into the EEA Agreement do not appear substantial.

The Attorney General's observations to the Supreme Court state that the Norwegian ERTMS project, operated by Bane NOR, has advanced so far that ERA's prior approval is no longer relevant. Nevertheless, subsequent project changes may require new approvals. In any event, these involve distinctly expert assessments within a narrow subject area. Viewed as a whole, the transfer of powers appears to the Supreme Court to be limited in extent, and the social and political interests affected by the decisions ERA will be empowered to take do not appear central. As mentioned, undertakings operating solely in Norway may still choose Norwegian authorisations. Undertakings operating across borders will in practice need ERA authorisations in any event.

The Supreme Court assumes that Norwegian railway safety authorities would not allow safety considerations to be overridden by other, more political considerations. The applicable rules are already largely harmonised at EEA level. In this respect, it is natural in substantive terms to compare the transfer of powers in this case with the transfer that has taken place to EASA. 7 Conclusion The Supreme Court therefore concludes that the Storting may consent to incorporation of the fourth railway package into the EEA Agreement under Article 26, second paragraph, of the Constitution.

This advisory opinion is unanimous. 31 HR-2021-655-P (case no. 21-001061SIV-HRET) Toril Marie Øie (signed) Magnus Matningsdal (signed) Jens Edvin A. Skoghøy (signed) Hilde Indreberg (signed) Bergljot Webster (signed) Wilhelm Matheson (signed) Aage Thor Falkanger (signed) Kristin Normann (signed) Ragnhild Noer (signed) Henrik Bull (signed) Knut H. Kallerud (signed) Per Erik Bergsjø (signed) Arne Ringnes (signed) Wenche Elizabeth Arntzen (signed) Ingvald Falch (signed) Espen Bergh (signed) Cecilie Østensen Berglund (signed) Erik Thyness (signed) Kine Steinsvik (signed)