(Seoul = Yonhap News) Reporter Lee Mi-ryeong = There were conflicting interpretations in the legal community regarding the constitutional issues surrounding the conflict over the nomination of Supreme Court Justice candidates.
Since conflicts are bound to be repeated in the current personnel selection structure, it was also pointed out that the appointment process needs to be improved more fundamentally by revising the constitution and laws.
On the 13th, the People's Solidarity for Participatory Democracy and the Lawyers' Association for a Democratic Society held a 'debate on legal issues surrounding the nomination of Supreme Court justice candidates and suggestions for institutional improvement' at the People's Solidarity for Participatory Democracy in Jongno-gu.
Han Sang-hee, a professor at Konkuk University Law School and co-representative of People's Solidarity for Participatory Democracy, who was the presenter, began by saying, "The recent conflict is nothing more than a power conflict over 'mine or yours?'"
Professor Han explained, "As part of the Yushin Constitution, which vested judicial power in the President, the President took control of the right to appoint judges. The current Constitution included a provision for the consent of the National Assembly in the Yushin Constitution, but it is difficult to say that the right to recommend has been strengthened to the point where it overwhelms the President's right to appoint."
The president's influence has been practically operating in the composition of the Supreme Court, and the existence of consultation between the president and the chief justice also shows that the president has exercised legal and de facto influence.
Professor Han interpreted that in this context, the right to recommend the Chief Justice of the Supreme Court means ‘part of the right to nominate,’ and the remaining part is held by the president.
In other words, since the nomination power is shared between the Chief Justice of the Supreme Court and the President, President Lee Jae-myung's refusal to appoint is also a 'partial exercise of the nomination power' and there is no constitutional defect.
At the same time, he explained that if the President notifies the candidate of his refusal to appoint a candidate, the Chief Justice of the Supreme Court is subject to the constitutional duty of nomination due to the 'vacancy in the Supreme Court Justice', even if it is not the duty based on the 'President's notification'.
Professor Han, however, pointed out that “the right to recommend also includes the choice of recommendation procedure,” and that “it is problematic for the President’s Office to issue a statement requesting re-recommendation among existing recommendees like this one.”
On the other hand, Song Ki-chun, a professor at Chonbuk National University Law School, said that although the president has the authority to reject the recommendation of the Chief Justice of the Supreme Court, requesting re-recommendation without providing reasonable grounds violates the Constitution.
Professor Song explained, “If the President has verified the appointment before requesting consent and it is found that there are reasons to be considered unfit to be a Supreme Court Justice, he may express his intention to refuse the appointment.”
Professor Song said, however, "There are people who are better as Supreme Court Justices than the candidates recommended, so I don't think we can reject or reject the recommendation with the reason that we should specifically recommend that person. This is what President Syngman Rhee has already shown in the recommendation process for the appointment of the second Chief Justice of the Supreme Court."
He said that there is also a possibility of infringing on the independence of the court if a candidate is rejected or a proposal is rejected without any special reason, adding, “If an appointment is rejected, a reasonable reason must be presented.”
An opinion was presented that it is difficult to view the nomination of a candidate who could not reach an agreement with the Blue House as unconstitutional.
Professor Song said, “Prior consultation is for convenience, and not going through it is not a violation of procedure. If an agreement cannot be reached and a recommendation is not made, the right to appoint takes precedence.”
Han Sang-hoon, a professor at Yonsei University Law School, also pointed out, "The Blue House criticizes that the right to appoint has been neutralized (through unilateral recommendation), but if on the contrary, a recommendation can only be made by agreement, then this would be a joint recommendation by the President and the Chief Justice of the Supreme Court," adding, "It can be said that it runs counter to the purpose of the Constitution to guarantee judicial independence."
He further added, “This is because the right of consent from the National Assembly and the right of appointment from the President are passive verification of disqualified candidates, and are not interpreted as the right to actively select the desired candidate.”
At this time, voices were pouring in calling for the practice of ‘closed-room agreements’ to be eliminated and the process for selecting Supreme Court justices to be improved.
Professor Han Sang-hee pointed out that the current Supreme Court Justice Candidate Recommendation Committee is led by the Chief Justice of the Supreme Court from its composition and does not have democratic representation, and most of the meetings are one-time and held behind closed doors.
He said, "Ultimately, the selection of Supreme Court justices should be replaced by election by the Judicial Council or nomination by the Judicial Administration Committee, and in the short term, the composition of the candidate recommendation committee must be democratized to strengthen representation with representatives of civil society and judges elected by the Judicial Council."
He also said that if the recommendation committee recommends more than three times the number of candidates as it does now, it is likely to lead to the practice of 'sharing recommendations borrowed from the screening format', and that the recommendation committee needs to recommend only the minimum number of candidates.
Professor Song Ki-chun also emphasized the need for the recommendation of Supreme Court justices with democratic legitimacy, saying, “It is illegal for the Chief Justice of the Supreme Court to exercise the right to recommend the appointment of fellow Supreme Court justices as a constitutional principle of the Supreme Court, which is a consensus body.”
He said, "We need to create a committee on judicial administration and have more than half of the general public participate so that we can control the president's exercise of authority to appoint the Chief Justice of the Supreme Court or Supreme Court Justices and recharge democratic legitimacy."
Attorney Choi Yong-geun (Court Reform Subcommittee, Minbyun Judicial Center) also suggested that the composition and appointment method of the Supreme Court Justice Recommendation Committee should be significantly revised, and proposed measures such as ▲ removing the Minister of Court Administration from the composition of the recommendation committee, ▲ requiring one of the candidates recommended by the recommendation committee to be recommended unless there are special circumstances, and ▲ stipulating that the recommendation committee meeting procedures be made public.
Professor Sang-Hoon Han proposed a plan to abolish the term of office of Supreme Court Justices and allow them to serve until the retirement age of 70, citing issues with legal stability and political neutrality arising from the short term of office of Supreme Court Justices.
