[VIEWPOINT]Don’t play tricks with the ConstitutionWhat would happen if a president who had only about one month left in his term appointed the prosecutor general and the commissioner general of the National Police Agency, each of whom were to serve two-year terms? The whole nation would be in an uproar. The opposition parties would criticize the president, saying, “The president is playing a trick, because he worries that the corruption committed by the administration under the protection of political power will be exposed in the next administration.” And civic groups would not stay calm with their arms folded.
The controversy over the appointment of Jeon Hyo-sook as the chief justice of the Constitutional Court is a serious problem caused by the extreme high-handedness of the current administration. Ms. Jeon was appointed as a judge of the Constitutional Court in 2003.
If President Roh Moo-hyun had sought the consent of the National Assembly for the appointment of Ms. Jeon as the chief justice while a judge of the Constitutional Court, and left her to complete her remaining term of three years, the whole country would not be in such a noisy situation as we are in now. Of course, he would have to endure criticism for appointing to the post someone who shares his ideological views.
The problem now is the unconstitutionality of the procedure. Article 111, Clause 4 of the constitution states, “The head of the Constitutional Court shall be appointed by the president from among the adjudicators with the consent of the National Assembly.” The Blue House, therefore, violated the constitution by asking its consent on the appointment of Ms. Jeon as the chief justice after letting her quit her position as a judge of the court, despite the clear stipulation in the constitution that a civilian who is not a judge of the Constitutional Court cannot be appointed as its chief justice.
With the problem so far exposed, there is a clear enough defect to disqualify Ms. Jeon from being appointed as the chief justice. If the chief justice, who presides over court proceedings related to constitutionality is appointed despite the controversy on the constitutionality of her appointment, complications will follow. If a person filing a case on a constitutionality issue disagrees with a decision of the court, and points out that the composition of the judges is unconstitutional, there is a chance the court could be undermined.
An even more serious problem is that another unconstitutional factor can be raised if Ms. Jeon is appointed under present circumstances. Article 112, Clause 1 of the constitution states, “The term of office of the adjudicators of the Constitutional Court shall be six years and they may be reappointed under the conditions as prescribed by law.”
If Jeon Hyo-sook is appointed as chief justice, she will end up working as a judge for a total of nine years, because she has already served three years and would serve another six years. It means that she is actually reappointed to serve one more term in the court.
I asked authorities whether or not this strange form of reappointment is unconstitutional. One high-ranking judge of the court considered the situation and said that it was indeed “unconstitutional.” Professor Chong Jong-sup, who teaches constitutional law at Seoul National University, also said it was “obviously unconstitutional.” He said, first of all, “It violates the rights of the next president to appoint the chief justice and judges of the Constitutional Court.” If Ms. Jeon is appointed as the chief justice while remaining in her status as a judge, she would serve the remaining three years of her term as the chief justice.
But the current administration tried to extend her term of office as the chief justice to six years, by arranging for her to start a new term of office as the chief justice. If this is allowed, the next president can only appoint the next chief justice a few months before he leaves office, and the president who will come after him will have no chance at all to appoint a chief justice of the court. The right to appoint the chief justice of the Constitutional Court is a constitutionally guaranteed right of the president.
The second problem is that according to the law, reappointment means starting a new term of office after the first term expires. And reappointing a person who quit the post in the middle of the term violates the system of term of office and reappointment, as stipulated by the constitution.
In other words, since Ms. Jeon quit the post of a judge on the Constitutional Court during her term, she cannot be reappointed as a judge of the court. And since she can’t be a judge again, there is no way she can be the chief justice. It is pointed out that what occurred was a violation of the constitution in the first place, not simply a procedural violation.
The controversy over the appointment of Jeon Hyo-sook simply shows us the status of legal-mindedness of Korea today. The Office of the Senior Presidential Secretaries of Civil Administration and Personnel Affairs that examined the issue and verified the procedural matters originally cannot evade its responsibilities. The same is applicable to the Supreme Court and the Constitutional Court, with which the Blue House is said to have consulted. It is a shame that the government, courts, National Assembly, Constitutional Court and judiciary did not recognize the unconstitutionality of the procedure until Democratic legislator Chough Soon-hyung pointed it out.
How this case is concluded can be a harbinger of the future of Korea.
Why don’t they, the Supreme Court, Constitutional Court, Korean Bar Association and Minbyun, or Lawyers for a Democratic Society, say anything at all? And what went wrong with the National Assembly that had pledged to solve the controversy about the unconstitutionality of the appointment of Ms. Jeon with “a political trick?” Korea will not collapse even if the post of the chief justice of the Constitutional Court is left unoccupied.
Turning a blind eye to the unconstitutionality of the appointment will be far more critical to the nation’s future. I pity the people of Korea who leave the country in the hands of such an incompetent legislature, administration and judiciary.
* The writer is an editorial writer of the JoongAng Ilbo.
by Kim Du-woo