Constitutional Scholars: "Acting President's Appointment of Constitutional Court Justices Elected by the National Assembly is a 'Constitutional Duty'"

Constitutional law scholars have pointed out that the appointment of constitutional court justices elected by the National Assembly is a 'constitutional duty' of the acting president.

According to the legal community on the 27th, the 'Constitutional Scholars' Meeting for the Restoration of Constitutional Order' held an emergency online roundtable the day before to discuss constitutional issues, focusing on the recent political debate over the 'nature of the appointment of constitutional court justices elected by the National Assembly and the discretion of the acting president.' The scholars attending the roundtable unanimously agreed that the acting president has a 'constitutional duty' to appoint the constitutional court justices elected by the National Assembly.

The Constitutional Court flag fluttering in the wind. Photo by Yonhap News

Multiple constitutional law scholars, including Professor Lim Ji-bong of Sogang University Law School, stated at the roundtable, "The president's appointment right regarding constitutional court justices elected by the National Assembly is a formal appointment right in terms of content and nature, so it can be exercised by the acting president," adding, "The appointment of constitutional court justices elected by the National Assembly should be seen not as a mere freedom or right but rather as a constitutional duty of the president or the acting president. Failure or refusal to do so is unconstitutional and grounds for impeachment."

Professor Jeon Gwang-seok of Yonsei University Law School also said, "The president has a constitutional duty to normalize constitutional institutions, and in the current special situation, the role of the acting president is important, making the appointment of constitutional court justices even more necessary," adding, "In a situation where the constitutional crisis must be overcome through a normal impeachment procedure, passive responses by the acting president are undesirable." He further emphasized, "Refusal to appoint constitutional court justices elected by the National Assembly, which even the president cannot reject, exceeds presidential authority. If the acting president claims substantive review rights over these justices, it is unconstitutional because it asserts powers that even the president does not have."

Professor Jeong Tae-ho of Kyung Hee University Law School stated, "The claim that the National Assembly, which is the impeachment prosecution body, electing members of the Constitutional Court, which is the impeachment adjudication body, constitutes a conflict of interest is not valid," pointing out, "The appointment of constitutional court justices is the fulfillment of a constitutional duty and is a different issue from conflict of interest."

Professor Kwon Geon-bo of Ajou University Law School emphasized again, "In a six-member constitutional court justice system, it is appropriate for nine justices to handle the presidential impeachment case for the sake of the constitution's intent and the legitimacy of constitutional adjudication," adding, "Vacancies in the constitutional court justices related to the presidential impeachment must be urgently addressed, and the acting president should appoint constitutional court justices to prevent constitutional obstacles."

The scholars attending the roundtable also reached a consensus that the acting president's exercise of the veto power over the so-called 'internal rebellion special prosecutor' bill is unjust. While opinions differed on the general exercise of veto power over bills, in the case of the 'internal rebellion special prosecutor law,' it was agreed that Acting President Han Deok-su, who is also included as a suspect under investigation, cannot exercise veto power.

Professor Jeong said, "While the exercise of veto power by the acting president is generally possible, exercising veto power to refuse investigation based on personal interests or private concerns related to one's own issues is not appropriate," adding, "Since the acting president is a suspect in the so-called internal rebellion case, he cannot exercise veto power over the internal rebellion special prosecutor law."

Professor Jeon Jong-ik of Seoul National University Law School also said, "The veto power over bills is not a simple presidential power but must be decided and exercised carefully based on valid and appropriate grounds. It is inappropriate for the acting president to treat it as a mere power and exercise it," adding, "Exercising veto power over the so-called internal rebellion special prosecutor law exceeds the inherent limits of veto power and is therefore not permitted."

Professor Kim Seon-taek of Korea University Law School also emphasized, "The acting president's veto power over the internal rebellion special prosecutor law is a clear ground for impeachment and constitutes obstruction of justice as it relates to his own case," stressing, "The acting president cannot exercise veto power over bills."

The Constitutional Scholars' Meeting for the Restoration of Constitutional Order is a temporary organization composed of constitutional scholars to discuss and propose responses to urgent constitutional issues related to the constitutional crisis caused by the 'December 3 Emergency Martial Law Incident.' The roundtable held the day before included about 20 constitutional scholars, including co-representatives and standing executive members of the Constitutional Scholars' Meeting.