"Acting President Cannot Determine Appointment of Constitutional Court Justices"

The Constitutional Court has suspended the authority of Acting President Han Duck-soo regarding the appointment of Constitutional Court justices from the presidential quota.

On the afternoon of the 16th, the court unanimously accepted a motion for a temporary injunction filed by attorney Kim Jung-hwan.

Accordingly, the validity of Acting President Han's appointment of Lee Wan-kyu, head of the Legislation Office, and Ham Sang-hoon, presiding judge of the Seoul High Court, as candidates for Constitutional Court justices is suspended until the final ruling.

In its decision, the court stated, "It cannot be conclusively stated that the Prime Minister, acting on behalf of the President, has the authority to appoint justices of the Constitutional Court."

It also stated, "If there is no authority, the appointment of individuals without going through the procedures specified in the Constitution would allow them to participate in constitutional adjudication, which could infringe on the people's right to a fair trial."

"If the injunction is dismissed, damages would be greater… Acknowledgment of urgency"

Regarding the background of this decision, the Constitutional Court mentioned, "If the injunction is not granted and a decision is made in the main case, not only the rights of the applicant but also the rights of other parties in constitutional complaints could be widely infringed."

In particular, it explained, "The disadvantages that arise when a request for an injunction is dismissed and the subsequent claim is accepted are greater than if the main constitutional complaint is dismissed," thereby acknowledging the urgent need to prevent damages.

The court also pointed out, "Once the personnel hearing request is submitted to the National Assembly and the statutory deadline for the hearing passes, appointment becomes possible regardless of the National Assembly's consent, which could impose time constraints on the applicant in contesting the appointment of the justices."

The Constitutional Court raises issues of procedural legitimacy and trust in constitutional adjudication

The Constitutional Court also considered the possibility that if the candidates involved in this case were to make decisions in constitutional adjudication, their decisions would not allow for retrial. There are concerns that this could severely undermine the normative power and legitimacy of constitutional adjudication.

The court stated, "If a decision made by someone who is not appointed according to the procedures established by the Constitution and law takes effect, the trust and authority of constitutional adjudication could fundamentally be undermined."

Previously, on the 8th, the Acting President Han appointed Lee Wan-kyu and Ham Sang-hoon as replacements for retiring justices Moon Hyung-bae and Lee Mi-sun. In response, there has been opposition from the opposition parties and some legal circles, arguing that allowing an appointed acting authority to exercise the appointment power, which is a unique constitutional authority of the President, undermines constitutional order.

The Constitutional Court embarks on main case deliberation… Accelerated process initiated

Considering the significance of this series of constitutional complaints, including the temporary injunction motion, the Constitutional Court has initiated the hearing at an unprecedented speed. Following the electronic lottery on the 10th, Judge Ma Eun-hyuk was designated as the chief judge, and the case was officially referred for judgment on the 11th.

Separately, the Lawyers for a Democratic Society (Minbyun) and the law firm Deoksoo have also filed similar constitutional complaints, while National Assembly Speaker Woo Won-sik has filed a motion for a dispute over authority and a request for a temporary injunction against Acting President Han.

The Constitutional Court has held successive deliberations to gather opinions from the justices until today. This decision to grant the temporary suspension is expected to significantly impact the composition of the Constitutional Court justices and the constitutional interpretation of the scope of authority of the Acting President.

Image source: Han Duck-soo, Acting President / News1, News1