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11 - Is the Invisible Constitution Really Invisible?

Some Reflections in the Context of Korean Constitutional Adjudication

from Part II - The View from Asia Pacific and the Middle East

Published online by Cambridge University Press:  02 November 2018

Rosalind Dixon
Affiliation:
University of New South Wales, Sydney
Adrienne Stone
Affiliation:
University of Melbourne
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Summary

In this chapter, the author aims to delve into the nature and function of the invisible constitution in the context of Korean constitutional adjudication. The basic arguments are two-fold. First, what matters in constitutional practice or discourse is not the appearance but the ideal or spirit of the constitution so that the constitutional implications and function of the invisible constitution should not be exaggerated. Second, regardless of whether they are based upon either visible or invisible constitution, constitutional adjudication as one of important venues of constitutional discourse must dedicate itself to the enhancement of the ideal of constitutional democracy in the way that determines what the constitution does or says. Based upon these arguments, three constitutional cases the Korean Constitutional Court(“KCC”) delivered in the area of political arrangements were assessed. The author concludes that KCC took the right stance in making a proper use of the invisible constitution in the presidential impeachment case and election reapportionment cases while in the Capital relocation case it has misused what it terms “customary constitution” as a kind of invisible constitution to prevent civic and political participation in the decision making process for the relocation of the capital city.
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Publisher: Cambridge University Press
Print publication year: 2018

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