With the recent appointment of two Constitutional Court justices whose views are considered liberal, hopes and concerns are growing surrounding the court’s upcoming rulings on socially divisive issues, including the death penalty and the national security law.
Since taking office, President Moon Jae-in has appointed eight justices, including Lee Mi-son and Moon Hyung-bae in April. The appointment of so many justices under a single president is unprecedented, but came about because former President Park Geun-hye’s presidency was cut short in 2017.
With the retirement of former justices Seo Gi-seog and Cho Yong-ho, appointed under Park and generally considered conservative, the nine-member bench appears to have taken on a more liberal orientation.
The Constitutional Court now has six justices whose views are considered liberal -- the number needed to win a required two-thirds majority.
Furthermore, for the first time in its history it now has three female justices.
In the wake of these changes to the court’s composition, conservatives have expressed concerns that major rulings could tilt to the left in line with the Moon administration. For their part, liberals have high hopes for breakthroughs that could fundamentally reshape Korean society.
From left: Justices Lee Eun-ae, Lee Seon-ae, Seo Gi-seog, Chief Justice Yoo Nam-seok, Cho Yong-ho, Lee Suk-tae and Lee Jong-seok sit on the bench at the Constitutional Court in central Seoul on April 11. (Yonhap)
How Constitutional Court works
The Constitutional Court, which was established in 1988, reviews whether laws are constitutional, rules on disputes between government entities and makes the final decision on impeachment and the dissolution of political parties, among other duties.
All Constitutional Court justices are appointed by the president. Three are directly appointed by the president, and another three are first nominated by the Supreme Court chief justice. The remaining three are chosen by political parties across the aisle, prior to their appointment, in a process designed to maintain the court’s impartiality.
The Constitutional Court is currently headed by Justice Yoo Nam-seok, who was appointed by Moon last year and is seen as liberal. Justices Lee Suk-tae and Lee Eun-ae were nominated by Supreme Court Chief Justice Kim Myeong-soo, who was likewise appointed by President Moon. They too are considered liberal.
Justice Lee Seon-ae, who was nominated by former Chief Justice Yang Sung-tae, and Justice Lee Young-jin, chosen by the minor opposition Bareunmirae Party, are considered moderates.
Only one justice, Lee Jong-seok, who was chosen by the main opposition Liberty Korea Party, is seen as conservative.
The addition of Lee Mi-son and Moon Hyung-bae increased the number of nonconservative Constitutional Court justices to eight.
The dominance of liberal-leaning justices can be expected to continue until 2023, when Lee Suk-tae and Yoo Nam-seok’s six-year terms end in April and November, respectively.
Court to rule on divisive issues
The current bench is expected to rule on major issues, including the death penalty and the voting age.
The court is also reviewing the constitutionality of some diplomatic decisions -- such as the 2015 deal between South Korea and Japan on Korean women forced into wartime sexual slavery by the Japanese military, the shutdown of the Kaesong industrial park in North Korea and the deployment of the American advanced anti-missile defense system THAAD.
It is also reviewing the constitutionality of the 1948 national security law, which bars any behavior or speech found to be supportive of communism or the North Korean regime.
The leftward turn of the current Constitutional Court may be a predictor of its rulings on those issues. Notably, it ruled against the country’s 66-year-old abortion ban last month.
Overturning its own 2012 ruling, the court ruled 7-2 that criminalizing all abortion restricts pregnant women’s rights to self-determination by forcing them to maintain their pregnancies. Legal experts attributed the change of stance to the court’s composition.
On the issue of the death penalty, only two justices are against completely abolishing it, citing the need for some form of strong crime deterrent. In 2010, the Constitutional Court ruled the death penalty constitutional, and it was recently asked to review the issue again.
In the case of Clause 92 of the Military Criminal Act, which outlaws homosexuals in the military, the Constitutional Court found the clause constitutional in a 5-to-4 ruling in 2016. In 2017, an Incheon court brought a case concerning homosexual activity in the military to the Constitutional Court.
Hopes and concerns
Advocates of sexual minority rights and those calling for the abolition of the death penalty welcome the new appointments of liberal Constitutional Court justices and hold out hope that the bench will rule in their favor.
But there are also concerns that the Constitutional Court has fallen under the influence of the Moon administration or tilts too far left. The main opposition Liberty Korea Party has gone so far as to call the Moon administration a “liberal dictatorship.”
Experts remain split on the extent to which the justices’ political leanings might affect the upcoming rulings.
“There is little room for justices to be influenced by their own political ideologies. They are bound to constitutional interpretation of the issues and changes in public opinion,” said Han Sang-hie, a law professor at Konkuk University Law School.
“Given how constitutional values have been distorted and undermined at the expense of protecting other values such as national security in the past, the rulings to be made by the current bench are expected to be more in line with human rights, democracy and the rule of law,” he said.
Chang Young-soo, a law professor at Sogang University Law School, on the other hand, raised concerns about the possibility of politically oriented rulings, which he said would be a regression away from democracy and the rule of law.
Chang said the Constitutional Court is bound to tilt politically as the president holds too much power to appoint justices under the current system.
“The president can appoint three, the Supreme Court Chief Justice, who is appointed by the president, names three, and the ruling party chooses at least one, which means the majority would end up being in line with the incumbent administration,” he said.
“I would suggest the creation of a system in which an independent committee recommends justice nominees to the National Assembly and the president appoints them only upon approval from the National Assembly,” Chang said.
For now, the appointment of the chief justice requires parliamentary approval, whereas other justices do not require such approval.