Calls grow for reforming Constitutional Court appointments

Legal experts are increasingly calling for urgent institutional reforms to prevent recurring confusion whenever Constitutional Court justices’ terms expire, an issue reignited after Acting President Han Duck-soo abruptly nominated replacements for outgoing justices Moon Hyung-bae and Lee Mi-sun on April 18.

Under the South Korean Constitution, Constitutional Court justices serve a fixed six-year term and must leave office immediately once their term ends. This system creates unavoidable vacancies if successor appointments are delayed. Such delays often stem from political gridlock, especially concerning the three justices nominated by the National Assembly. For instance, after three Assembly-nominated justices, including former Chief Justice Lee Jong-seok, retired in October last year, the court operated with only six justices for over two months until Cho Han-chang and Jeong Gye-seon took office in January. In a more extreme case, one seat remained vacant for 14 months following the retirement of Justice Cho Dae-hyun in 2011.

A particularly problematic scenario arises when a president-appointed justice retires during a presidential vacancy or suspension. During President Park Geun-hye’s impeachment, Acting President Hwang Kyo-ahn did not appoint a successor to Chief Justice Park Han-chul, following the prevailing legal interpretation that an acting president should refrain from exercising full presidential authority. However, Acting President Han's recent decision to appoint successors, citing the need to avoid institutional disruption, has sparked controversy, with critics arguing the move may be unconstitutional and an overreach of power.

The Constitutional Court requires at least seven justices to proceed with deliberations. Yet, since rulings often hinge on one or two votes, decisions made during a vacancy period may lack perceived legitimacy. In Germany, justices continue to serve until successors are appointed, with a safeguard. If the legislature fails to appoint replacements within two months of term expiry, the court itself may nominate candidates. This mechanism is designed to prevent political forces from intentionally extending certain justices’ terms. On the other hand, Austria employs substitute justices who can temporarily fill vacancies.

Some experts advocate for clearly defined rules on how the National Assembly should distribute its nomination rights for the three legislative seats to prevent future delays. They emphasize that the Assembly must take swift action to develop concrete measures so that disputes over appointments do not paralyze the court or subject it to political wrangling.