Constitutional Court dodges paralysis by suspending quorum requirement

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Constitutional Court dodges paralysis by suspending quorum requirement

Published: 15 Oct. 2024, 19:03

LIM JEONG-WON
lim.jeongwon@joongang.co.kr

Audio report: written by reporters, read by AI

Constitutional Court Chief Justice Lee Jong-seok and other Constitutional Court justices are seated in the courtroom of the Constitutional Court in Jongno District, central Seoul, on Aug. 29. [YONHAP]

The Constitutional Court has temporarily suspended a legal provision that states that a case can only be heard when at least seven judges are present, seemingly evading a looming paralysis of the bench.

This comes as three out of nine judges, including Chief Justice Lee Jong-seok, are set to retire simultaneously on Thursday due to the expiration of their terms.

The Constitutional Court has taken the emergency measure of suspending the provision as rival parties in the National Assembly, which must elect successor judges, clash over their share of justice recommendations and shirk their responsibility of nominating candidates.

On Monday, the Constitutional Court unanimously accepted an application for an injunction to suspend the effect of Article 23, Paragraph 1 of the Constitutional Court Act -- which states that “a case can be heard only when at least seven judges are present” -- filed by Lee Jin-sook, the chairwoman of the Korea Communications Commission, who has been suspended since last month after being impeached by the National Assembly.

With the trial halted due to the judges’ retirement and Lee's suspension of duties in danger of being extended indefinitely, a request for the injunction was filed along with a constitutional petition on Oct. 10.

“If three judges retire due to the expiration of their terms and the positions become vacant, and the case cannot even be tried according to Article 23, paragraph 1 of the Constitutional Court Act, this is effectively a suspension of the trial process for reasons other than trial itself and an excessive restriction on the defendant’s right to a speedy trial,” the Constitutional Court said. “If the suspension of duties becomes prolonged, it could present significant obstacles for Lee in performing her duties as the chairwoman of the Korea Communications Commission.”

With this decision, the Constitutional Court can hold regular hearings on all cases, including Lee's impeachment trial, even after Chief Justice Lee Jong-seok and Justices Lee Young-jin and Kim Ki-young retire on Thursday.

The Constitutional Court stated that “if the injunction application were dismissed, even if Lee's claims were accepted in the main trial, it would be difficult to restore the right to a speedy trial and other basic rights since they have already been violated,” and that “this is the same for other cases pending before the full bench.”

“In that case, citizens who are not responsible for the vacancy of the judges will be the ones to suffer,” the court added.

The National Assembly has not yet nominated a single candidate to succeed the retiring Constitutional Court judges. Even after a nomination, confirmation hearings and other procedures usually take over a month.
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In its decision, the Constitutional Court said, “Although it is expected that judges will retire due to the expiration of their term, the repeated occurrence of vacant judge positions is a serious problem not only in terms of protecting the subjective rights of each citizen but also in terms of the objective nature of constitutional trials.”

“The Constitutional Court could have been reduced to a vegetative body because of the National Assembly,” said Kim Hyun, former president of the Korean Bar Association, who is representing people in constitutional petition cases such as euthanasia. “Suspending the effect of a law is not an easy decision, but it is a realistic path for the Constitutional Court to open up.”

A lawyer with experience working with the Constitutional Court said it was a "bold and wonderful decision for judges who are about to retire to come together and resolve the issue.”

The provision suspended on this day concerned the quorum for deliberation only, and decisions on the constitutionality of a law or impeachment will still require the agreement of six justices or more.

This means if the vacancy continues after the three judges retire, the remaining six justices must reach a unanimous decision to make a decision. Also, the decision on this day is an injunction, not a final decision that the provision is unconstitutional.
The provision’s effect will be suspended until a decision is made on the constitutional petition filed by Lee Jin-sook.

The presidential office issued a short comment on Tuesday, saying, “We respect the Constitutional Court’s decision.”

The conservative People Power Party (PPP) welcomed the Constitutional Court’s decision the same day.

“The Democratic Party’s (DP) strategy of delaying the recommendation of Constitutional Court justices has failed, and the remaining justices can now conduct an impeachment trial on Commissioner Lee Jin-sook,” said Park Jun-tae, the PPP’s floor spokesperson. “We hope the Constitutional Court will make a swift and fair decision on the unfair impeachment attempt.”

On the other hand, the DP expressed regret regarding the decision.

“It is regrettable that the Constitutional Court itself made a decision that is equivalent to a legislative act and that the recommendation process, including the personnel hearing for Constitutional Court justices, was scheduled to proceed after the National Assembly inspection,” said Yoon Jong-gun, the floor spokesperson for DP. “We hope that the Constitutional Court’s future review will be a process of passing a stern judgment on Commissioner Lee Jin-sook, who directly violated the current law.”

BY MOON HYUN-KYUNG, KIM JUNG-YEON, KANG BO-HYUN, LIM JEONG-WON [lim.jeongwon@joongang.co.kr]