[Law & Story] The Constitutional Court Must Return to Its Original Purpose

Uniform Conclusions Along Justices' Political Leanings
Limits of a Political Judicial Institution Exposed
The Court Must Reaffirm Its Constitutional Mission

Choi Seok-jin, legal affairs specialist reporter.

The Constitutional Court is often referred to as a 'political judicial institution.' Unlike courts, which are simply called 'judicial institutions,' the Constitutional Court is prefixed with 'political' because, unlike the judiciary that rules solely based on the law, constitutional adjudication considers political judgments regarding national policies, ideologies, and the direction society should take.

For example, even if a law is considered outdated or even highly unconstitutional, courts must always rule based on positive law, whereas the Constitutional Court has the authority to invalidate laws if social norms once accepted have changed due to evolving times and shifts in public legal sentiment, deeming them unconstitutional.

Representative examples include the abolition of the family head system (hojuje), the principle of exclusive paternal authority, and the criminal provisions on adultery and abortion, which were once accepted in society but were overturned by the Constitutional Court’s rulings of unconstitutionality or constitutional incompatibility. Protecting citizens' fundamental rights and controlling not only executive and judicial powers but also the legislative power of the National Assembly is the authority and mission entrusted to the Constitutional Court by the Constitution.

There were many twists and turns before the Constitutional Court’s status was established today. When the Court was first established in 1988, it had serious conflicts with the Supreme Court over the position as the highest judicial institution. There were even absurd cases where the Supreme Court did not recognize the Constitutional Court’s 'limited unconstitutionality' rulings, resulting in parties losing cases in court despite the Constitutional Court’s unconstitutionality decisions. This was partly because the Constitutional Court was much younger than the Supreme Court and because constitutional justices were appointed from judges who had not become Supreme Court justices or prosecutors who had not become Prosecutor General.

However, the Constitutional Court was able to grow its presence by issuing decisions on high-profile cases that attracted significant public attention, such as the dissolution of the Unified Progressive Party and two impeachment trials of sitting presidents.

Last month, the Constitutional Court ruled on a jurisdictional dispute case related to the so-called 'complete removal of prosecution’s investigative authority' laws, including the revised Prosecutors’ Office Act and the revised Criminal Procedure Act led by the Democratic Party, concluding that while there were procedural unconstitutionality and illegality issues, the laws passed were valid.

Although it acknowledged that the behavior of Democratic Party lawmaker Min Hyung-bae, who used a 'cunning resignation' to neutralize the agenda adjustment committee composed equally of ruling and opposition members, was an illegal and unconstitutional act infringing on the People Power Party lawmakers’ rights to review and vote, it found no problems with the passage of the bills in the National Assembly plenary session.

Regardless of the correctness of the Constitutional Court’s decision, what was shocking was the stark division of opinions along the political leanings of the justices.

Yoo Nam-seok, the Constitutional Court Chief Justice classified as progressive, and Justices Moon Hyung-bae, Kim Ki-young, and Lee Seok-tae issued dissenting opinions dismissing all petitions filed by People Power Party lawmakers, while Justice Han Dong-hoon, Minister of Justice, and prosecutors filed petitions that were dismissed outright. Justice Lee Mi-seon, who played the 'casting vote' role in this case, acknowledged the illegality and unconstitutionality of the 'cunning resignation' but agreed with the progressive justices on all other issues.

Chief Justice Yoo, appointed by former President Moon Jae-in, is a founding member of the Uri Law Research Association, chaired by Supreme Court Chief Justice Kim Myung-soo. Justice Lee Mi-seon, also appointed by former President Moon, and Justice Kim Ki-young, appointed by the Democratic Party, are from the International Human Rights Law Association, chaired by Chief Justice Kim during its first and second terms. Justice Moon was also appointed by former President Moon. Justice Lee Seok-tae, appointed by Chief Justice Kim, is a former president of the progressive lawyers’ group Minbyun.

There is no sign of serious consideration of the purpose of the National Assembly Act provisions designed to curb the ruling party’s runaway power or the impact these laws may have on the public. It feels like a regression compared to the 1997 jurisdictional dispute case over the 'labor law hasty passage,' where opinions were fiercely divided on each issue.

The Constitutional Court may be 'political,' but it is fundamentally a 'judicial institution.' As long as there are justices who issue uniform conclusions based on who appointed them, whether they are conservative or progressive, rather than engaging in rigorous legal reasoning to protect the Constitution and citizens’ rights, the future of the Constitutional Court will inevitably be bleak.

If the Constitutional Court loses its original purpose, wavers according to political ideology, and continues to prioritize organizational survival in its decisions, no one can guarantee that calls for the Constitutional Court’s uselessness or abolition will never arise.

This content was produced with the assistance of AI translation services.