Constitutional Court faces paralysis over Justice appointments

Since its establishment in 1988, South Korea’s Constitutional Court has only declared a provision in its own Constitutional Court Act unconstitutional three times. Two of these cases involved whether a court ruling that did not follow the Constitutional Court’s partial unconstitutionality decision could be challenged through a constitutional complaint. The third ruling, delivered on October 14, concerned a provisional measure that temporarily suspended a provision requiring at least seven of the nine Justices to be present for case reviews. This decision came just before the retirement of three Justices, whose replacements, to be appointed by the National Assembly, have yet to be confirmed.

Critics argue that the court’s "self-decision" to suspend the quorum provision was inappropriate and that the bench vacancy should have been resolved through legislative action. However, blame has also been placed on the National Assembly for failing to appoint new Justices in a timely manner, as required by the Constitutional Court Act. The Act states that successors must be appointed before the term of an outgoing Justice expires. The delay has led to accusations of political maneuvering. The Democratic Party criticized the court's decision as an overreach akin to legislative action, while the People Power Party stood by, pointing fingers at the opposition without taking action.

Although the court can technically continue deliberations under the recent ruling, its functionality has been severely hampered. Key rulings on constitutionality, constitutional complaints, and impeachment require six Justices to vote in favor, which is problematic given the current composition of only six active Justices. Historically, even one empty seat has postponed sensitive rulings, as a single Justice’s vote can sway outcomes. Decisions made without a bench risk being criticized for lacking legitimacy.

From October onward, the court is effectively unable to make critical decisions, leaving unconstitutional statutes in force and violations of fundamental rights unresolved. This delay in justice affects the public’s right to a constitutional trial. Worse yet, such vacancies are not uncommon. The president, Supreme Court chief justice, and National Assembly appoint three Justices each, but the National Assembly often fails to meet deadlines. In 2018, three seats remained vacant for nearly a month due to political infighting, and in 2011, a Justice’s seat after the retirement of former Justice Cho Dae-hyun was left unfilled for 14 months.

A clear, codified process is needed to allocate the National Assembly's three nominations fairly among parties. Without such rules, political conflicts will continue to disrupt the appointment of Justices, with parties potentially stalling the process to delay rulings on sensitive issues like impeachment. The National Assembly should not have the power to halt the work of the Constitutional Court, a body it is not authorized to control under either the Constitution or statutory law.