Constitutional Court rules acting president cannot delay appointment of remaining justice nominee

Eight justices rule on whether acting President Choi Sang-mok’s decision to withhold the appointment of the ninth justice to the bench was unconstitutional, at the Constitutional Court in Seoul, Thursday. Joint Press Corps

The Constitutional Court on Thursday ruled that acting President Choi Sang-mok’s decision to withhold the appointment of a ninth justice to the bench is unconstitutional and infringes upon the National Assembly'right for candidate recommendation, pressuring Choi to fill the remaining vacancy.

As attention shifts to Choi’s next steps, experts suggest that a ruling by a full nine-member bench on President Yoon Suk Yeol’s impeachment trial is unlikely, given that eight justices have been already deliberating the case after concluding a final hearing.

Choi appointed two of the three justice nominees recommended by the National Assembly in December, but held off the appointment of opposition-recommended candidate Ma Eun-hyuk, citing a lack of consensus between the ruling People Power Party (PPP) and the main opposition Democratic Party of Korea (DPK).

In response, National Assembly Speaker Woo Won-shik requested a ruling on the constitutionality of Choi’s decision.

In a unanimous ruling, the court found that Choi’s non-appointment of Ma violated the Assembly’s right to recommend a justice to the court.

“Choi’s failure to appoint justice candidate Ma infringes upon the National Assembly’s right to compose the Constitutional Court through the recommendation of a court justice as granted by the Constitution,” the court said.

“The [acting] president is not allowed to refuse to appoint a justice candidate recommended by the Assembly on his own discretion or selectively appoint specific person."

The acting president said he respects the court’s ruling and will review its decision.

“We respect the Constitutional Court’s decision,” Choi's aide said without providing details about whether the acting president would appoint Ma or not.

Although the court decision obliges him to appoint Ma, it does not say "until when" he should do so — another issue that can become a bone of contention if Choi keeps delaying the appointment.

Ma Eun-hyuk, a candidate for new Constitutional Court justice, answers lawmakers' questions at his confirmation hearing at the National Assembly in Seoul, Dec. 23, 2024. Newsis

Legal experts advised that Choi should promptly move forward with Ma’s appointment, emphasizing that the Constitutional Court should consist of nine justices to effectively address various needs.

“Choi is required to appoint Ma, thereby filling the nine-member bench. But there is no clause that specifies by when Choi should appoint Ma,” Kim Seon-taek, a professor of constitutional law at Korea University, said.

Many believe that Ma’s potential addition to the court’s nine-member bench could play a crucial role in Yoon’s trial, given his progressive stance. Since at least six justices must approve an impeachment for it to be upheld, appointing an additional justice could increase the likelihood of Yoon’s impeachment being confirmed.

The PPP said the court’s ruling was “deeply regrettable” while the DPK urged Choi to immediately appoint Ma.

Yoon’s legal team accused the court of being guided by political ideology, adding that its ruling was aimed at securing the quorum for Yoon’s impeachment trial.

“The court’s ruling is political that violates the spirit of the Constitution. Instead of playing a mediator role, it chose to become a political force for the main opposition party,” Yoon’s legal team said in a statement.

However, experts said that it is unlikely for Ma to participate in the deliberation on Yoon's ruling even after he is appointed.

“The court wrapped up its final hearing and is in a hurry to deliver its verdict by mid-March. However, the hearings would need to be repeated if Ma joins the case. Joining the deliberations last minute could be time-consuming as the trial is nearing an end,” Kim said.

The Constitutional Court Act’s Article 23 stipulates that a minimum of seven justices are required to deliberate cases and mandates the approval of six justices for impeachment decisions.

Under Article 301 of the Criminal Procedure Act, the proceedings of a trial need to be repeated all over again when a judge is changed (or added) after the trial has commenced. However, the article states that it will not apply in cases where only the verdict is left to be announced.

Assembly Speaker Woo expressed hope that Choi would promptly appoint Ma to restore the court’s nine-member bench.