[News Inside] Unconstitutional Extravaganza... Compromise Is Needed

Criticism is emerging in the legal community as Acting President and Prime Minister Han Deok-su and the Democratic Party of Korea continue actions that seem to disregard the 'Constitution' regarding the appointment of Constitutional Court justices. Despite knowing that Acting President Han's nomination of two candidates for the president's share of Constitutional Court justices would spark controversy over 'overstepping authority,' the Democratic Party is attempting to amend the law to restrict the president's appointment and nomination rights for Constitutional Court justices, even applying the changes retroactively.

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Acting President Han ignores constitutional interpretation and precedent that 'Acting President should exercise authority passively'

Legal circles criticized Acting President Han's nomination of Lee Wan-gyu, head of the Ministry of Government Legislation, and Ham Sang-hoon, chief judge of the Seoul High Court, as candidates for the president's share of Constitutional Court justices, calling it 'unconstitutional.' Although there is no legal provision prohibiting an acting president from nominating justices, this action exceeded the majority interpretation in constitutional law that "an acting president should not exercise authority to actively change the status quo but should exercise authority passively to maintain the status quo."

Previously, the only case of an acting president appointing a Constitutional Court justice was after former President Park Geun-hye's impeachment, when Acting President Hwang Kyo-ahn appointed Justice Lee Sun-ae, who was nominated by the Chief Justice. However, this case differs from Acting President Han's situation. Professor Bang Seung-joo of Hanyang University Law School said, "It is constitutionally problematic for an acting president to actively exercise authority." Last month, the Constitutional Court ruled in a jurisdictional dispute case concerning the quorum for impeaching Acting President Han that the quorum should be applied based on the original position (Prime Minister), not the president, implying that the acting president should refrain from exercising powers reserved only for the president.

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Democratic Party counters with a highly unconstitutional law amendment

In response to Acting President Han's nomination of justices, the Democratic Party retaliated by passing the 'Constitutional Court Act Amendment' through the National Assembly's Judiciary Committee. The amendment prohibits the acting president from appointing or nominating the president's share of Constitutional Court justices and applies the law retroactively. It also includes provisions that if the president does not appoint candidates for the National Assembly and Chief Justice's shares within seven days, they are deemed automatically appointed, and that justices whose terms have expired continue to serve until successors are appointed.

The legal community views this as conflicting with the Constitution, which stipulates the president's authority over civil servant appointments and Constitutional Court justice appointments. Professor Lee In-ho of Chung-Ang University Law School said, "It is unconstitutional to reduce or abolish presidential powers stipulated in the Constitution by law," adding, "Constitutional powers (higher law) cannot be reduced by statute (lower law)." Professor Jang Young-soo of Korea University also said, "Laws should be general, and making laws for specific cases is wrong," adding, "The ruling party in the National Assembly keeps making laws to dictate actions whenever specific incidents occur, which goes against the fundamental spirit of the separation of powers." A former judge turned lawyer said, "Retroactive legislation and arbitrarily extending the terms of justices stipulated by the Constitution undermine legal stability."

On the other hand, some argue that it is inevitable to prevent Acting President Han's 'unconstitutional' actions. Professor Lee Heon-hwan of Ajou University said, "The scope of authority exercised by the acting president has so far relied on interpretive theory, and it was unclear what specific actions were possible," adding, "In such cases, since organizational laws regulate the powers of state institutions, it is difficult to view this as unconstitutional."

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Constitutional complaints and injunctions continue

Constitutional complaints and accusations are pouring in over Acting President Han's nomination of justice candidates. Groups such as the People's Solidarity for Participatory Democracy have filed injunctions to suspend the effect and constitutional complaints to block this. However, there are inherent limits to blocking 'unconstitutional' exercises of authority by the executive and legislative branches through law. There are clear time constraints, and it is unclear whether the litigation requirements are met. Professor Jang Young-soo said, "Even if the Constitutional Court Act amendment passes in the National Assembly, Acting President Han can exercise veto power, and even if a jurisdictional dispute is filed, there are issues with standing, so legal resolution is practically difficult," adding, "Ultimately, it must be resolved through political compromise." A former judge turned legal professional said, "The best solution is for both sides to simultaneously withdraw their unconstitutional actions."

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