The Constitutional Court has been one justice short for more than a year, leaving its already crowded docket more crowded. The blame should be laid on the ruling Saenuri Party and the main opposition Democratic United Party, which have held the selection process hostage for their partisan interests.
But an opportunity to put the court’s operation back to normal is coming soon, with the National Assembly set to hold confirmation hearings on nominees to replace four retiring justices and another to fill the existing vacancy. This time, no delay should be permitted in the selection process, which will start later this month, with the four justices retiring on Sept. 14.
Of the five nominees, two are to be selected by the chief justice of the Supreme Court and the remainder by the National Assembly ― more specifically one each by the ruling party and the main opposition party and the remaining one jointly by the two parties. The chief justice will reportedly come up with his nominees this week. The parties are also called on to speed up the selection of their nominees.
The Constitutional Court’s woes started with the ruling party’s veto of the nominee selected by the opposition party. The party refused to endorse the nominee because of remarks he had made at his confirmation hearing, taking issue with what it regarded as his flawed sense of national security. He had said that he was not unwaveringly convinced that the South Korean corvette was sunk by North Korea in March 2010 because he did not witness it.
When the opposition party refused to comply with the Saenuri Party’s demand that he be replaced, the ruling party voted him down when his nomination was finally put to a vote in February this year. A consensus is now reportedly building in the opposition party to put up Kim Yi-soo, dean of the Judicial Research and Training Institute, as a new nominee.
The single vacancy has had a greater consequence on the court’s operation than it implies because of its unusual decision-making process.
A simple majority does not work in cases of critical importance. For instance, it requires approval from six or more of the nine justices to render statutes unconstitutional and uphold petitions against practices that infringe on basic rights.
It is theoretically possible that a 5-to-3 decision that leaves the constitutionality of a statue intact on an eight-member bench could be overturned on a nine-member bench if one more joined the majority opinion. Because of this possibility, the court has reportedly delayed decisions on the constitutionality of such laws as those on adultery and abortion.
Calling the prolonged vacancy an “unconstitutional situation,” the court has repeatedly demanded that it be filled as soon as possible. Yet, the opposition party has ignored the demand and taken no action to select a new nominee.
This is not to say that the ruling party is above reproach. Out of respect for diversity in the court, the ruling party could have tolerated the opposition party’s selection of a liberal judge as the nominee and voted for him. By voting against him, however, it abandoned the tradition of respecting each other’s selection.
This time, however, the rival parties and the Supreme Court are called on to take every action needed to ensure that the selection of the five justices proceeds without a hitch and, by doing so, put the court’s operation back to normal. They should help the Constitutional Court put an end to the “unconstitutional situation” as soon as possible and clear its crowded docket.
To do so, they will have to take extra care to ensure that none of the nominees are ethically blemished, suspected of speculating in property or breaching the law on resident registration, as is often the case among those nominated to high public offices. Such efforts will help the National Assembly speed up the confirmation hearings.
Preferably, they are also called on to consider women and others representing minorities for nomination for the sake of promoting diversity in the bench. Such a bench will undoubtedly be better positioned to help resolve social conflicts among diverse groups of people.
