Urgent Call for Injunction: Han Duck-soo’s Unconstitutional Nomination of Constitutional Court Justices Faces Scrutiny! 🚨

Amidst heated debate, the Constitutional Court is reviewing the constitutionality of Prime Minister Han Duck-soo’s nomination of two justices. Legal experts suggest an injunction is likely. Here’s why:

1. Overreach of Authority: Scholars argue Han, acting as interim president, exceeded his authority. The court has previously distinguished the role of an interim president from that of a directly elected president.
2. Swift Court Action: The court’s rapid review and decision to hold a full bench hearing indicate the case has merit.
3. Controversial Nominees: Concerns over the nominees’ qualifications, including alleged bias and questionable rulings, further complicate matters.

Key Points from the Original Article:

• The Constitutional Court has begun reviewing a constitutional appeal regarding the nomination of two Constitutional Court justices by President’s Authority Acting Han Duck-soo, with forecasts suggesting a high likelihood of an injunction being granted.
• Constitutional scholars overwhelmingly view the nominations as unconstitutional and unlawful, exceeding the scope of authority for an acting president. The Constitutional Court has previously clarified that a Prime Minister acting as president holds a distinctly different position from a president.
• The legal community anticipates a decision on the injunction before the retirement of Justices Moon Hyung-bae and Lee Mi-sun on the 18th. There’s growing public sentiment that the Constitutional Court, having enhanced its credibility through the impeachment decision of Yoon Suk-yeol, should further solidify its role as the ultimate guardian of the Constitution.
• Several signs indicate the Constitutional Court may challenge Han Duck-soo’s decision. The court’s swift handling of the case is notable, assigning it to a presiding judge just one day after the constitutional appeal was filed and resolving to hold a full bench hearing the following day. This suggests the appeal meets the legal requirements, virtually eliminating the possibility of dismissal.
• The Constitutional Court’s decision not to form a preparatory team for the confirmation hearings of candidates Lee Wan-kyu and Ham Sang-hoon is also seen as positive. It’s unusual, as a confirmation hearing preparation team is typically formed within the Constitutional Court as soon as a Constitutional Court justice candidate is nominated.
• The prevailing view in academia that this constitutes a grave violation of the Constitution is a key reason for expecting the injunction to be granted. The dominant interpretation in constitutional law is that the scope of authority for an acting official, who is not directly elected, cannot be the same as that of a president.
• The Ministry of Government Legislation’s 2010 commentary on the Constitution states that “the scope of an acting official is limited to maintaining the status quo due to its temporary nature,” a view also supported by the National Assembly Research Service. The Constitutional Court directly expressed this view in the recent decision to dismiss the impeachment of Han Duck-soo.
• Multiple justices stated that “the President’s Authority Acting is a position to perform duties as an acting official, not a newly created public office or position.” The legal community generally agrees that if the Constitutional Court rejects the injunction, it would be an indefensible self-contradiction by recognizing the authority of an acting official as that of a president.
• The controversy over the qualifications of the two candidates is also expected to influence the Constitutional Court’s decision. Lee Wan-kyu is a close aide who has actively defended insurrectionist Yoon Suk-yeol and is a suspect in charges related to insurrection. It’s hard to imagine the Constitutional Court, which firmly judged Yoon Suk-yeol’s insurrectionary actions, would condone Lee Wan-kyu, an accomplice to insurrection.
• Ham Sang-hoon’s qualifications and credentials also fall far short of what’s required for a Constitutional Court justice. Following a ruling that “the dismissal of a bus driver for embezzling ₩2,400 in bus fare is justified,” a series of rulings have come to light in which he reduced sentences in sexual offense cases for incomprehensible reasons. It’s difficult to believe that someone who takes the rights of victims and the vulnerable lightly can carry out the weighty responsibilities of protecting the Constitution and human rights.
• The appointment of two justices by the president may be passed on to the next president. An injunction requires the approval of at least five justices, and with the addition of progressive-leaning Justice Ma Eun-hyuk, the composition of the Constitutional Court, now with nine members, suggests a high likelihood of approval.
• If approved, Han Duck-soo’s nomination would be suspended until a decision is made on the constitutional appeal. Under the Constitutional Court Act, a minimum of seven justices is required to hear a case, so even if two justices retire, the seven-justice system can make a ruling on the constitutionality of the main issue. However, a decision to approve the unconstitutionality requires the approval of at least six members, so the substantive judgment is likely to take a long time.
• In this case, the appointment of Constitutional Court justices by the president may ultimately be passed on to the next president. Since the role of the acting president disappears once a new president is elected, the legal community generally believes that Han Duck-soo’s nomination will effectively lose its validity. In this scenario, the newly elected president would nominate justices again after the presidential election, and the Constitutional Court would not make a separate judgment on the merits of the case.
• If a candidate nominated by a President’s Authority Acting without democratic legitimacy becomes a Constitutional Court justice, the authority and credibility of the Constitutional Court will inevitably plummet. If justices who are in league with insurrectionary forces and lack significant qualifications are appointed, it’s doubtful whether the Constitutional Court can even function properly.
• While it would be in order for Han Duck-soo to withdraw the nominations now, there’s a growing public sentiment that the Constitutional Court itself must prevent a situation in which its existence is denied. The Constitutional Court cannot help but be watched again.

Impact:

• Erosion of Trust: Appointing justices without democratic legitimacy could severely damage the court’s credibility.
• Future Implication: This decision could set a precedent for the powers of interim leaders.

The Constitutional Court’s decision is crucial for maintaining its integrity and upholding constitutional values. Stay tuned for updates! 🏛️

Note: ₩ stands for South Korean Won, the currency of South Korea.