[Reporter’s Notebook] Is the Acting President Above the Constitution?

Shockwaves Over Presidential Quota Justice Nominations
Exercising Authority Beyond Custom and Consensus

On April 8, Acting President and Prime Minister Han Ducksoo made a surprise announcement, simultaneously unveiling three appointments to the Constitutional Court. While the appointment of Justice Ma Eunhyeok was expected, Han also nominated Lee Wankyu and Ham Sangkyu at the same time. In effect, the acting president exercised the authority to appoint justices traditionally reserved for the president.

There is no legal provision prohibiting an acting president from nominating justices who are the president's prerogative. However, it has been customary-and an implicit consensus in Korean society-that an acting president exercises only passive authority, maintaining the status quo. When former President Park Geunhye was impeached, Acting President Hwang Kyo-ahn did appoint a justice, but only in a case recommended by the Chief Justice of the Supreme Court. Even then, he passively carried out the appointment of a justice nominated by the Chief Justice.

However, Han bypassed this consensus and custom by nominating justices. There are even reports that he effectively consulted with the People Power Party. Han and others have repeatedly criticized the Democratic Party for what they called the indiscriminate impeachment of cabinet members on unconstitutional or illegal grounds. How is this any different? Moreover, many constitutional scholars interpret that an acting president should not exercise proactive authority to change the status quo. This inevitably raises questions about political neutrality and procedural legitimacy.

Last month, in a competence dispute ruling regarding the quorum for impeachment resolutions by an acting president, the Constitutional Court determined that an acting president is not regarded as the president, but rather as holding their original position. This can be interpreted as a caution that the acting president should refrain from exercising powers exclusive to the president. Therefore, Han's actions could be seen as going against the Constitutional Court's interpretation.

National Assembly Speaker Woo Wonshik has stated that he will not accept requests for a parliamentary confirmation hearing. By law, justices appointed by the president must undergo a confirmation hearing, but the Speaker has declared that no such hearing will take place. However, the Confirmation Hearing Act stipulates that even if the National Assembly fails to adopt and submit a report within the deadline, the president may still proceed with the appointment. Ultimately, even if Han unilaterally finalizes the appointments, there is no clear way to prevent it.

Han remained silent even after the Constitutional Court unanimously ruled that "delaying the appointment of candidate Ma Eunhyeok is unconstitutional." Yet, as soon as former President Yoon Suk-yeol was removed from office, Han appointed Ma and simultaneously nominated two additional candidates, almost as if adding them in. This raises questions as to whether the motive was truly to ensure the normal functioning of the Constitutional Court, or if it was driven by partisan interests. If the appointment of Constitutional Court justices is determined by political calculations, it undermines the rule of law.

The Constitutional Court has established itself as the "final arbiter of disputes," judging the constitutionality of laws and administrative acts, and even deciding on the removal of the president. For this reason, the Constitution stipulates that the appointment of justices be evenly distributed, with three each nominated by the legislative, executive, and judicial branches. Han must reflect on whether his decision aligns with the Constitution.