Constitutional Complaint Filed Against Acting President’s Appointment of Constitutional Court Justices ⚖️

A constitutional complaint and request for a preliminary injunction have been filed with the Constitutional Court regarding Acting President Han Duck-soo’s designation of Lee Wan-kyu, head of the Ministry of Government Legislation, and Ham Sang-hoon, senior judge of the Seoul High Court, as successors to Constitutional Court Justices Moon Hyung-bae (acting Chief Justice) and Lee Mi-sun, whose terms are expiring. This is the first legal challenge to the unprecedented designation of justices by an acting president, which has sparked constitutional debate. 🤔

Key Points:

• The Issue: The complaint argues that Acting President Han’s actions exceed his authority and violate the constitutional right to be judged by qualified judges.
• The Plaintiff: Attorney Kim Jung-hwan, who is already involved in a constitutional case, claims the appointments infringe upon his right to a fair trial.
• Legal Argument: Kim argues that the appointments should be halted to prevent unconstitutional judges from participating in his case.
• Urgency: With the justices’ retirement imminent, the court is urged to make a swift decision on the injunction.
• Precedent: A similar injunction was granted in the past regarding the appointment of a broadcasting commissioner, suggesting a possibility of a favorable outcome.

Detailed Breakdown:

Kim Jung-hwan, a lawyer and visiting professor at Yonsei University, filed the complaint, asserting that Acting President Han’s designation violates Article 27, Paragraph 1 of the Constitution, which guarantees the right to a trial by judges prescribed by the Constitution and law. Kim argues that Han’s actions go beyond the scope of authority granted to an acting president, rendering them unconstitutional and invalid. 📜

Specifically, Kim stated in his petition to the Constitutional Court that designating Lee Wan-kyu and Ham Sang-hoon as justices and requesting personnel hearing reports infringes upon his right to a trial by judges appointed with the qualifications and procedures prescribed by the Constitution and law, thus confirming its unconstitutionality. ⚖️

Kim emphasized that the request is timely because “the infringement of fundamental rights will become a reality when the appointment, which is unconstitutional and invalid, could lead to a trial by unqualified judges. The designation and submission of the personnel hearing request are necessary procedures for the appointment and are inseparable from the appointment.”

He further added, “Given that established precedents of the Constitutional Court (92Hun-ma68, etc.) recognize the current nature of infringement for the effectiveness of fundamental rights relief, even if the infringement occurs in the future but is reliably predicted to be certain, the object of this request is primarily the ‘designation and submission of the personnel hearing request,’ and secondarily the ‘appointment.’”

Kim concluded by stating, “To prevent an unconstitutional and invalid appointment, the Constitutional Court needs to interpret the scope of the acting president’s appointment power. Tolerating such appointments undermines the authority of the Constitutional Court. Please grant the request as quickly as possible so that the Constitutional Court can demonstrate to the public that it serves as the last bastion of fundamental rights protection.” 🙏

Legal circles have largely agreed that Acting President Han’s designation of justices is unconstitutional but have also noted the lack of effective means to prevent it. While the Democratic Party of Korea considered filing a rights dispute adjudication, many interpreted that the party whose rights were infringed upon by Han’s actions was the next president, not the National Assembly. 🤔

While Kim’s constitutional complaint itself may take a long time to be decided, the injunction could be resolved quickly. Last year, when Justices Lee Jong-seok, Lee Young-jin, and Kim Ki-young were about to retire without replacements (October 17), causing the Constitutional Court to face a functional paralysis, Lee Jin-sook, then-Chairwoman of the Korea Communications Commission, filed a constitutional complaint and request for a preliminary injunction (October 10) regarding the provision that ‘cases are deliberated with the attendance of seven or more justices’ (Constitutional Court Act Article 23, Paragraph 1). The Constitutional Court granted the injunction unanimously just four days later on October 14. 😮

Im Ji-bong, a professor at Sogang University Law School and former president of the Korean Constitutional Law Association, noted, “Kim Jung-hwan, as a party currently undergoing trial and as a lawyer, is qualified to file a constitutional complaint. With Justices Moon and Lee retiring on the 18th, there is also a sense of urgency. The Constitutional Court is likely to accept the request for a preliminary injunction quickly.” 🚀