The following article appeared in the Korea Times on March 2, 2012.
Because of a critical flaw in the Korean Constitution, the National Assembly’s nine-month delay in nominating a justice to a vacant seat may cause an irreparable constitutional crisis.
This crisis has the potential to lead to the destruction of the power of the Constitutional Court and, thus, the destruction of a critical check on the National Assembly, president and the ordinary courts.
The Constitutional Court has been fiercely criticized by politicians, on both sides of the aisle, for being involved in questions that are inherently political in nature. During my six years working at the Court I was vocal in my opposition to this, obvious, tendency of the Court’s justices and researchers.
These political tendencies are fostered by the Court because of a lack of consistently applied legal tests. This is caused by the lack of experience in interpreting the Constitution by the justices and their researchers and constitutional scholars at law schools who are more interested in politics than structured legal analysis.
For example, the capital relocation case had little to do with the interpretation of the Constitution and more to do with the “political” attitude of the justices toward the relocation of the nation’s capital as noted by many of the more mainstream legal commentators.
The criticism over this and like cases is warranted, but this criticism should not lead to politicians using the present impasse as a tool to destroy a needed check on politicians and the ordinary courts.
This potential crisis came to a head when the main liberal opposition party nominated an attorney who was considered by many as being overall political.
To the delight of most of the mainstream, the ruling Saenuri Party has rejected this nomination because of the attorney being considered too liberal-leaning and political, by many, because of his peculiar views on a variety of issues including the sinking of the Cheonan by the North Korean military. The law firm that the attorney works for is, also, considered by many attorneys as a liberal-leaning law firm.
The Saenuri Party may have acted appropriately in rejecting the candidate, but without a quick choice of a replacement, the National Assembly may create a precedent that can lead to the destruction of the power of the Constitutional Court.
Under the Constitution, three of the nine Constitutional Court justices may be designated by the National Assembly, three by the chief justice of the Supreme Court and three by the nation’s President. The nomination system is intended to allow the three branches of government to equally fill the nine seats at the court, thus, giving the power to nominate all branches of government.
A problem arises because of a poorly drafted super-majority rule based on an absolute number (six justices) and not an absolute percentage (i.e. two-thirds).
Article 113 (1) of the Constitution clearly declares that: “When the Constitutional Court makes a decision of the unconstitutionality of a law, a decision of impeachment, a decision of dissolution of a political party or an affirmative decision regarding the constitutional complaint, the concurrence of six justices or more shall be required.”
Therefore, in order for a law or action of the government to be declared unconstitutional or for the president or other high-ranking official to be impeached, the concurrence of six justices is necessary. This absolute numerical super-majority rule is obviously flawed when the court is absent justices. The drafters seemed not to consider a situation where less than nine justices were seated at the court.
It is possible that this precedence may lead to the three other branches of government not confirming nominations, thus, essentially protecting itself from the power of the Constitutional Court to declare laws passed by the National Assembly and signed into law by the president unconstitutional.
The situation is so grave that the chief justice of the court sent an unprecedented open letter to the National Assembly. The timing of the letter may have been less than advisable, since it may be perceived as a nod of support for the nixed candidate, but the letter shows the seriousness of the situation.
As the chief justice noted in his letter, the Assembly “should act immediately to resolve this problem. Choosing a justice is a constitutional obligation and responsibility for the parliament … The fact that there is a vacancy on the bench means a lot more than you imagine. It can change the court’s rulings.”
I hope for the good of an institution that has played a vital role in advancing democracy – that political branches do not use this constitutional flaw as a tool to destroy a necessary check on the National Assembly, president and ordinary courts.
New York attorney Sean Hayes worked for the Constitutional Court and as a professor of constitutional law. He is presently working for a leading international law firm. Contact him at SeanHayes@ipglegal.com.
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