Even in the "Constitutional Court's Time," Challenges Abound... Many Tasks Remain to Be Solved

Focus on Constitutional Court's Decision on Yoon's Impeachment
Dispute Possible Over Acting President Appointment Authority
Moon Hyung-bae, Lee Mi-seon Terms Ending Soon

If the impeachment motion against President Yoon Suk-yeol passes the National Assembly, the "Constitutional Court's time" will begin, but even if the ball moves to the Constitutional Court, there are many challenges to be resolved. The burden of impeachment hearings and decisions in a 'six-member system' is significant, but there is also legal controversy over whether Prime Minister Han Deok-soo can exercise the appointment rights for the three vacant justices. Another obstacle is that the terms of Justices Moon Hyung-bae and Lee Mi-seon expire in April next year.

Prime Minister Han, First in Line as Acting President: Does He Have the Right to Appoint Constitutional Court Justices?

The impeachment roadmap envisioned by the Democratic Party of Korea is: '① Impeachment motion passed → ② President's suspension from duty → ③ Prime Minister acting as president → ④ Appointment of three Constitutional Court justices.' Opposition parties believe that filling the three vacancies and conducting the impeachment trial with a full bench is advantageous for procedural legitimacy and completeness, and are pushing for the passage of the impeachment motion based on this scenario.

The first issue here is the scope of authority of Prime Minister Han, who would serve as acting president if the impeachment motion passes the National Assembly. Even if it reaches step ③, there is legal debate over whether Prime Minister Han can appoint the three justices recommended by the National Assembly. Since the authority of an acting president is limited to 'maintaining the status quo,' some argue that it is inappropriate to dismiss or newly appoint key officials such as ministers or Constitutional Court justices. During the impeachment trial of former President Park Geun-hye, it was a contentious issue whether Hwang Kyo-ahn, then acting president, had the right to appoint Park Han-chul as the next Chief Justice of the Constitutional Court. Due to strong opposition, the impeachment was heard and passed in an 'eight-member system' without a Chief Justice. Moreover, unlike Hwang, Prime Minister Han is implicated in President Yoon's declaration of martial law, raising questions about the legitimacy of his role as acting president. There is also the possibility that Prime Minister Han may resign along with other presidential aides.

However, some legal experts argue that it is merely a 'formal appointment' and poses no problem. The three candidates for the Constitutional Court justices recommended by the National Assembly (lawyer Jo Han-chang, Judge Jung Gye-seon of the Seoul Western District Court, and Chief Judge Ma Eun-hyuk of the Seoul Western District Court) are not from the president's recommendation pool. Professor Jang Young-soo of Korea University Law School said, "If the acting president exercised the president's right to recommend Constitutional Court justices and guaranteed a six-year term, there would be significant procedural issues, but since the vacancies are from the National Assembly's quota, it can be seen as within the scope of 'maintaining the status quo.'" Professor Kim Sang-gyeom, emeritus at Dongguk University, also predicted, "Since this is not creating a new institution but exercising the usual state agency composition rights, it would not be unreasonable even if the acting president does it."

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Six-Member Constitutional Court... Hearing Possible Due to ‘Lee Jin-sook Injunction,’ but Decision Capability Remains Uncertain

If the impeachment hearing proceeds with the current 'six-member system' without filling the three vacancies, procedural issues remain. According to Article 23, Paragraph 1 of the Constitutional Court Act, 'a hearing requires seven justices,' but last October, the Constitutional Court accepted an injunction filed by Lee Jin-sook, Chairperson of the Korea Communications Commission, ruling that 'the Court can continue hearings even if it becomes a six-member system.' The Court's position is that the impeachment of President Yoon can be reviewed under the same logic. The question remains whether a 'decision' as well as a 'hearing' is possible.

A constitutional law scholar said, "The injunction allowing hearings with six justices does not explicitly include decisions, so there is room for controversy," and added, "If the impeachment is heard with six justices, even one dissenting opinion would cause rejection, and there would be significant pressure and burden regarding the completeness of the Court's decision." Among the current six justices, four (Kim Hyung-doo, Jung Jung-mi, Jung Hyung-sik, and Kim Bok-hyung) are known to have moderate to conservative leanings, so it is uncertain whether the impeachment motion will be accepted even if it reaches the Court. However, Professor Kim said, "There can be no progressive or conservative interpretation of the Constitution. Even during former President Park's case, there were more conservative justices. The Court will focus on whether the martial law proclamation clearly violates the Constitution."

Terms of Justices Moon Hyung-bae and Lee Mi-seon Expire in April Next Year... Is an Impeachment Decision Possible Before Then?

(From left) Moon Hyung-bae, Lee Mi-sun, Constitutional Court Justices

The final obstacle is the remaining terms of Justices Moon Hyung-bae and Lee Mi-seon, who were appointed by former President Moon Jae-in and took office on April 19, 2019. Their terms expire in April next year. It is expected to take at least about three weeks for the National Assembly's nominees for Constitutional Court justices to go through confirmation hearings and be appointed. Therefore, even if the 'nine-member system' is completed and impeachment hearings begin this month, considering the terms of the two justices, there is not much time. Especially, when the terms of Justices Moon and Lee end, the president's quota for Constitutional Court justices will become vacant again.

In fact, the impeachment trial period for former President Park Geun-hye lasted 92 days (filed on December 9, 2016, and verdict on March 10), and the impeachment review for former President Roh Moo-hyun took 63 days (filed on March 12, 2004, and verdict on May 14). Professor Jang said, "Even the impeachment trials of former Presidents Park and Roh were conducted very intensively," and added, "It was probably because a prolonged presidential vacancy was undesirable, but the length of the impeachment trial period can vary depending on how complex and contentious the issues are."

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