Concern over weaponized Constitutional Court shutdown grows amid political wrangling over appointments

Politicians and legal experts worry that the Constitutional Court's operations could come to a halt in October amid delays in nominating successors to three justices whose terms expire in two months.

Constitutional Court justices attend a hearing at the court headquarters in Jongno District, central Seoul, on July 18. [YONHAP]

Politicians and legal experts worry that the Constitutional Court's operations could come to a halt in October amid delays in nominating successors to three justices whose terms expire in two months.

The Democratic Party (DP)'s push to impeach seven public officials since the launch of the new National Assembly has further fueled this concern.

Since the 22nd National Assembly opened in May, the DP has pursued the impeachment of seven officials — former Chairman of the Korea Communications Commission (KCC) Kim Hong-il, prosecutors Kang Baek-sin, Kim Young-chul, Park Sang-yong and Eom Hee-jun, former Acting Chairman of the KCC Lee Sang-in, and KCC Chairwoman Lee Jin-sook.

The preceding 21st National Assembly, also controlled by the DP, pursued the impeachment of eight public officials.

If the National Assembly passes an impeachment motion, the duties of the impeached official are suspended until the Constitutional Court rules on the validity of the motion. At least seven judges must attend the Constitutional Court’s hearing.

If the number of judges falls to six or fewer, the hearing will be suspended, prolonging the official's suspension. This is why attention is focused on the expiration of the six-year terms of the nine Constitutional Court justices.

Four judges' terms will expire by October. Justice Lee Eun-ae's term will expire on Sept. 20, while the terms of Justices Lee Jong-seok, Lee Young-jin and Kim Ki-young will end on Oct. 17. Lee Eun-ae was appointed by the Chief Justice of the Supreme Court, but the other three were appointed by the National Assembly, and the election of their successors must be decided through a parliamentary plenary session.

The problem is that there are no concrete regulations on the procedure for appointing the judges selected by the National Assembly. Customarily, three judges are selected by having the ruling and opposition parties recommend one each, with the other recommended by bipartisan agreement.

However, this is only a non-binding custom, not a legal provision. For example, if the DP, which currently holds 170 seats, objects, none of the three can be nominated.

Because of this, members of the conservative People Power Party (PPP) have begun discussing the possibility that the Constitutional Court could cease functioning in October.

“If the DP does not cooperate with the vote, the three justices’ seats will remain vacant, and the Constitutional Court could become a six-justice system,” said a member of the PPP’s Legislation and Judiciary Committee during a phone call with the JoongAng Ilbo, an affiliate of the Korea JoongAng Daily. “The Constitutional Court requires at least seven judges to be present to hear cases, so a six-judge system will put the court into a vegetative state.”

“If the Constitutional Court becomes paralyzed, it is not the DP but the government and the PPP that will suffer,” said Ji Seong-woo, a professor of law at Sungkyunkwan University and president of the Korean Constitutional Law Association. Ji explained that this is because an immobilized Constitutional Court will harden the punch of the DP’s impeachment offensive.

“The DP knows better than anyone that impeachments that fail to meet requirements will not be accepted” by the Constitutional Court, a senior PPP member, who is also a former prosecutor, told the JoongAng Ilbo in a telephone conversation. “The DP is aiming for a long-term suspension of public officials’ duties by paralyzing the Constitutional Court.”

If the Constitutional Court ceases to function, potential PPP counterattacks to the DP’s impeachment offensive, such as competence disputes and court injunctions, will also be neutralized.

The PPP filed a request for a dispute and injunction against Rep. Jung Chung-rae, the chairman of the Legislation and Judiciary Committee, on July 12, claiming that the impeachment hearing of President Yoon Suk Yeol was unconstitutional.

They are also considering applying for a competence dispute over the DP’s Livelihood Recovery Support Funds Act, which provides 250,000 ($181.9) to 350,000 won to all citizens.

“The Constitutional Court’s decision, along with the presidential veto, is one of the few means of controlling the tyranny of the opposition party,” said a PPP official. “If the Constitutional Court ceases to function, the people will suffer.”

On the other hand, a DP member of the Legislative and Judiciary Committee countered that “we are proceeding with the appointments of the Supreme Court judges that the ruling party wants,” adding that “the PPP is spreading unfounded rumors.”

The Constitutional Court has, in fact, been rendered vegetative once before. In 2018, when the then-Liberty Korea Party — the predecessor of the PPP — took issue with the nomination of Justice Kim Ji-young, whom the DP recommended, the vote on the three judges appointed by the National Assembly was postponed.

After a 35-day tug-of-war, the ruling and opposition parties reached a dramatic compromise, and the Constitutional Court resumed operations.

The DP and PPP are expected to clash sharply over the three Constitutional Court judges appointed through the National Assembly this time around because the court’s leanings are determined by the political leanings of the judges recommended by the National Assembly.

The current Constitutional Court bench has two conservative justices, Lee Jong-seok and Cheong Hyung-sik; three moderates, Lee Young-jin, Kim Hyung-du and Jung Jung-mi; and four liberals, Moon Hyung-bae, Lee Mi-son, Lee Eun-ae and Kim Ki-young.

Of these, one conservative, Lee Jong-seok, one moderate, Lee Young-jin, and two liberals, Lee Eun-ae and Kim Ki-young, will be replaced by October.

There is much speculation that Supreme Court Chief Justice Cho Hee-dae will nominate a conservative judge to succeed Lee Eun-ae. If this happens, the six Constitutional Court justices, excluding the three recommended by the National Assembly, will consist of two conservatives, two moderates, and two liberals.

Thus, legal experts say the ideological orientation of the entire Constitutional Court depends on the three justices recommended by the National Assembly.

A war of nerves has already begun among politicians over the distribution of the three justices recommended by the National Assembly.

Attention is especially focused on the one judge who will be recommended through an agreement between the DP and the PPP.

Some DP lawmakers claim that a third party, the liberal Rebuilding Korea Party led by Cho Kuk, which currently has 12 seats in the National Assembly, should recommend the judge who would otherwise be recommended through a bipartisan agreement.

However, other lawmakers worry that this will naturally lead to appointing a liberal judge rather than one acceptable to both sides.

“The purpose of that seat is to recommend a reasonable judge that both the opposition and ruling parties can accept,” said Huh Young, professor of law at Kyung Hee University and a senior constitutional scholar.

BY SON KOOK-HEE, KIM KI-JEONG, LIM JEONG-WON [lim.jeongwon@joongang.co.kr]