Stalling the Constitutional Court

On December 27, 2024, the National Assembly passed the impeachment motion against Prime Minister Duck-soo Han with unanimous approval — 192 votes in favor out of 192 members present. Among the ruling People Power Party, only Representative Kyoung-tae Cho participated in the vote and supported the motion. Han, who had been serving as Acting President following the impeachment of President Yoon, was immediately suspended from his duties.

Prime Minister Han had been investigated by the police as a suspect on charges of insurrection, due to his participation in the cabinet meeting on the day martial law was declared, where the imposition of martial law was approved.

Yesterday, December 26, the National Assembly approved a motion to fill three vacancies on the Constitutional Court. However, Han exercised veto power as Acting President and refused to appoint the three nominees recommended by the Assembly. He cited the lack of bipartisan agreement on the nominees as the reason, stating that cross-party consensus is essential for such appointments. This refusal became the central reason behind his impeachment.

The Constitution and the Constitutional Court Act outline the composition of the Constitutional Court as follows:

On October 17, the three Justices appointed from the Assembly’s quota retired as completing their six year terms. Since then, the Constitutional Court has been operating with only six sitting Justices.

The Speaker of the National Assembly, Won-shik Woo, stated that there was bipartisan agreement on the three nominees. In a meeting of floor leaders in November, the ruling and opposition parties agreed to recommend the three Justices allocated to the National Assembly’s quota. On December 9, the People Power Party sent an official letter nominating Han-chang Cho, while the Democratic Party nominated Eun-hyeok Ma and Gye-seon Jung as Constitutional Court Justices.

Some have raised a constitutional question over whether an Acting President (rather than the President) can exercise veto power over the Assembly’s nominations. The appointment of these three Justices became especially contentious because the Constitutional Court is set to hear the impeachment trial of President Yoon.

A quorum of seven Justices is normally required to hear a case, and an impeachment decision requires the concurrence of at least six Justices.

On October 14, 2024, however, the Constitutional Court temporarily suspended the seven-Justice deliberation quorum, citing the constitutional right to a speedy trial, allowing proceedings to move forward. But even under these conditions, a single defection could doom the impeachment effort: with two current Justices appointed during President Yoon’s term, the possibility of a split is significant.

If the verdict is delayed, two more Justices are scheduled to retire in April next year. Should the Court be reduced to only four members, it would become procedurally impossible to issue any ruling on Yoon’s impeachment.

In response, the opposition parties sought to fill the vacant Constitutional Court seats through additional appointments, and impeached Han Duck-soo after he exercised his veto.

However, the required quorum for passing the impeachment motion itself became a point of controversy. Some argued that if Han was being impeached in his capacity as Acting President rather than as Prime Minister, the higher threshold of 200 votes required for presidential impeachment was not met. Seong-dong Kweon, acting leader of the People Power Party, declared the motion “null and void due to an invalid vote” and urged Han to remain in his acting capacity.

Han stated he respected the National Assembly’s vote and would await the Constitutional Court’s ruling, adding that he would suspend his duties to “avoid adding to the chaos.”

This led to Deputy Prime Minister and Finance Minister Sang-mok Choi assuming the role of Acting President. However, Choi himself had attended the cabinet meeting that approved the declaration of martial law and is under investigation for charges of insurrection, leaving the appointment of the National Assembly’s three nominees to the Constitutional Court in question.