🚨 Judicial Appointment Authority: A Key Element in Judicial Independence and Balance of Power

Today Korean Social News | 2025.04.13

📌 Constitutional Court Reels from 'Political Interference'... Growing Need for Reform in Judge Appointment Process

💬 Although the impeachment trial of former President Yoon Suk-yeol has ended, the Constitutional Court remains vulnerable to political influence controversies. The '3:3:3 system' in which the President, National Assembly, and Chief Justice each appoint three judges is designed for checks and balances, but in reality, it has led to bias controversies and appointment delays. Recently, the ruling and opposition parties have been criticizing each other's recommended judges, which is shaking the very function of the Constitutional Court. Constitutional law experts are suggesting the need for system improvements, such as the German parliamentary election model, and arguing that measures should be sought to strengthen political independence.

Summary

• Judicial appointment authority is an important power that determines the composition of the judiciary, with balance between judicial independence and democratic legitimacy being key.
• The current Constitutional Court operates under a '3:3:3 system' where the President, National Assembly, and Chief Justice each appoint 3 judges.
• Institutional improvements are needed to address issues of compromised independence and appointment delays caused by the politicization of the judge appointment process.

1️⃣ Definition

Judicial appointment authority refers to the power to select and appoint judges for major judicial institutions such as the Constitutional Court and Supreme Court. Simply put, it is the authority that determines who can select the judges who make important legal decisions for the nation, and how they are selected.

Judicial appointment authority is an important institutional mechanism for balancing judicial independence and democratic legitimacy within the principle of separation of powers.

💡 Why is it important?

• The method of judicial appointment directly affects the independence and neutrality of the judiciary.
• The nature and tendencies of judicial decisions can vary depending on who holds the appointment authority.
• The transparency and fairness of the appointment process forms the foundation of public trust in the judiciary.

2️⃣ Structure and Characteristics of Judicial Appointments

📕 Current Judicial Appointment System

• Constitutional Court judges are appointed equally by three institutions. The Constitutional Court consists of a total of 9 judges, which is referred to as the '3:3:3 system'. The President appoints 3 judges, the National Assembly elects 3 judges, and the Chief Justice designates 3 judges. Among them, the President of the Constitutional Court is appointed by the President from among the judges with the consent of the National Assembly. The term of a judge is 6 years, and reappointment is possible. Constitutional Court judges must have qualifications as judges and need at least 15 years of legal experience. In particular, the 3 judges elected by the National Assembly are often decided through consultation between the ruling and opposition parties.

• The Supreme Court composition gives significant authority to the Chief Justice and the President. The Supreme Court consists of the Chief Justice and 14 Justices. The Chief Justice is appointed by the President with the consent of the National Assembly. The Justices are appointed by the President upon the recommendation of the Chief Justice and with the consent of the National Assembly. Although the Supreme Court Justice Candidate Recommendation Committee recommends candidates, the Chief Justice has the final recommendation power and can exert considerable influence. The terms of the Chief Justice and Justices are 6 years; the Chief Justice cannot be reappointed, but Justices can be. The retirement age is set at 70. In the composition of the Supreme Court, the role of the National Assembly is limited to giving consent, so the direct influence of the legislative branch is relatively less compared to the Constitutional Court.

📕 Characteristics of the Judicial Appointment System

• The appointment structure reflects the principle of checks and balances. The current judicial appointment system is designed to allow different state institutions to participate in the appointment process according to the principle of separation of powers. This reflects the principle of checks and balances, preventing any one institution from monopolizing the composition of the judiciary. In particular, the '3:3:3 system' of the Constitutional Court seeks balance among powers by equally dividing the appointment authority among the executive branch (President), legislative branch (National Assembly), and judicial branch (Chief Justice). Also, most high-level judicial appointments include a consent procedure by the National Assembly in an effort to secure democratic legitimacy. This complex appointment structure has the advantage of allowing various social values and perspectives to be reflected in the judiciary.

• There is a tension between political influence and judicial independence. In the process of appointing judges, there is always a tension between political influence and judicial independence. The participation of the President and the National Assembly in the appointment process gives democratic legitimacy to the judiciary, but at the same time, there is a possibility of appointments being made based on political considerations. In particular, the process of electing judges in the National Assembly can become a subject of political negotiation between ruling and opposition parties. There are concerns that the ideological balance and diversity of the judiciary may be distorted as the political orientation of the appointing authority influences the selection of judges. Additionally, when the consent procedure in the National Assembly is delayed or rejected for political reasons, there is a problem of vacancies in the composition of the judiciary. Finding an appropriate balance between political influence and judicial independence is a key challenge for the judicial appointment system.

Key Issues in the Judicial Appointment System

1. Political Independence: The problem of excessive political considerations in the appointment process
2. Appointment Delays: Long-term delays in judicial appointments due to political conflicts
3. Diversity and Representation: Lack of ideological and social diversity in court composition
4. Transparency: Lack of transparency in the appointment process and limited public participation opportunities
5. Qualification Criteria: The problem of judge qualification requirements being centered on legal career experience
6. Reappointment System: The impact of the possibility of reappointment on independence
7. Term and Retirement Age: Issues with the appropriateness of term and retirement age systems
8. International Standards: The compatibility of the appointment system with international standards
9. Judiciary Trust: The impact of appointment controversies on public trust in the judiciary
10. Improvement Measures: Exploring various alternatives for reforming the appointment system

3️⃣ Issues and Challenges in Judicial Appointments

✅ Problems and Challenges in the Current System

• There are concerns about independence being compromised due to political influence. The current judicial appointment system is criticized for being vulnerable to political influence. Judges directly appointed by the President tend to be selected with similar political orientations to the President. Judges elected by the National Assembly can become subjects of political transactions between ruling and opposition parties. Judges designated by the Chief Justice may also be indirectly subject to political influence, as the Chief Justice is appointed by the President. This political influence increases the possibility that judges will make decisions that meet the political expectations of those who appointed them, which can compromise the independence and neutrality of the judiciary. These concerns are amplified in politically sensitive cases. This ultimately becomes a factor that reduces public trust in the judiciary.

• There are problems with weakened judicial functions due to appointment delays and vacancies. Delays and vacancies in the judge appointment process are another serious problem. Appointments are often delayed due to political conflicts between ruling and opposition parties, especially in procedures requiring National Assembly consent. This results in situations where the Constitutional Court or Supreme Court operates for extended periods without meeting the statutory number of judges. Judge vacancies lead to delays in case processing and postponement of important constitutional decisions. In some important cases, this can lead to a functional paralysis where decisions become difficult due to a lack of quorum. Appointment delays are a serious problem that weakens the core functions of the judiciary, such as protecting the constitutional order and guaranteeing the basic rights of citizens, beyond being a simple administrative issue. This can hinder the smooth operation of the rule of law and infringe on citizens' right to trial.

✅ International Examples and Improvement Measures

• There are lessons to be learned from various countries' judicial appointment systems. Different countries operate various judicial appointment systems, which can provide useful insights for improving our system. First, German constitutional judges are elected half by the Federal Diet and half by the Federal Council, requiring more than 2/3 approval, making political consensus important. Second, the US has a system where the President nominates and the Senate confirms, with thorough vetting and public hearings during the confirmation process. Third, France has adopted a system where 3 of the 9 members of the Constitutional Council are appointed by the President, 3 by the Speaker of the National Assembly, and 3 by the Speaker of the Senate. Fourth, Italy operates a Constitutional Court consisting of 15 members, with the President, Parliament, and Supreme Court each selecting 5. Fifth, Canada has adopted a system where a Judicial Advisory Committee creates a list of candidates, from which the Prime Minister makes appointments. These various models each have unique characteristics aimed at securing political independence, expertise, and democratic legitimacy.

• Various institutional improvement measures suitable for our situation are being discussed. Various measures are being proposed to improve the current judicial appointment system. First, enhancing the role of the Judicial Nomination Committee is necessary. The authority of a recommendation committee with participation from experts, civil society, and legal professionals can be expanded to limit arbitrary selection by appointing authorities. Second, the National Assembly's judge election method needs improvement. Requiring more than 2/3 approval rather than a simple majority can encourage consensus between ruling and opposition parties and mitigate ideological bias. Third, transparency in the appointment process needs to be strengthened. The democratic legitimacy of the appointment process can be enhanced through disclosure of candidate information, holding public hearings, and gathering citizen opinions. Fourth, institutional mechanisms to prevent appointment delays are needed. Alternative procedures should be established in case appointments are not made within a certain period to prevent judicial vacancies. Fifth, efforts to secure diversity among judges are necessary. Institutional mechanisms should be established to ensure balanced appointment of people with diverse backgrounds in terms of gender, region, expertise, and ideological orientation. These improvement measures should be discussed in a direction that simultaneously strengthens the independence and democratic legitimacy of the judiciary.

4️⃣ Related Terms

🔎 Constitutional Court

• The Constitutional Court is a key constitutional institution responsible for interpreting and protecting the constitution.
• The Constitutional Court refers to an independent constitutional institution that finally resolves disputes related to the constitution, guarantees the basic rights of citizens, and protects the constitutional order. Established in 1988 under the current constitution, it has five main powers: reviewing the constitutionality of laws, impeachment trials, dissolution of political parties, disputes over jurisdiction, and constitutional complaints. It consists of 9 judges, with 3 designated by the President, 3 by the National Assembly, and 3 by the Chief Justice. Judges must have qualifications as judges, with a term of 6 years, and reappointment is possible. The decisions of the Constitutional Court have final effect, binding all state institutions and local governments. The Constitutional Court functions as an independent constitutional institution separate from the legislative, executive, and judicial branches, serving as the final guardian of the constitution. It functions as a core axis of checks and balances against other state powers within the principle of separation of powers.

🔎 Judicial Independence

• Judicial independence is the principle that judges can make decisions according to law and conscience without external influence.
• Judicial independence refers to the principle that the judiciary can function independently, free from undue interference or influence from external forces such as the legislative branch, executive branch, political parties, media, and public opinion. Judicial independence can be broadly divided into institutional independence and individual independence. Institutional independence refers to the structure and system that allows the judiciary to operate independently from other state powers as an institution. Individual independence refers to the state where individual judges can make independent judgments based solely on law and conscience without external pressure. Institutional mechanisms to guarantee judicial independence include security of judicial tenure, autonomous judicial administration, guarantee of adequate compensation, and independent judicial appointment procedures. Judicial independence is a foundation of the rule of law and an essential element for guaranteeing the basic rights of citizens through fair trials. However, it is also an important task to balance judicial independence with the democratic accountability of the judiciary.

🔎 Checks and Balances

• Checks and balances is a principle where state powers control each other to prevent abuse of power.
• Checks and balances refers to the constitutional principle of preventing the excessive concentration of state power in a particular institution or force, and ensuring mutual control and monitoring among power institutions. This concept originated from Montesquieu's theory of the separation of powers, aiming to prevent abuse of power by having the legislative, executive, and judicial branches function independently while mutually checking each other. Concrete examples of checks and balances include the President's veto power, the National Assembly's oversight function over the executive branch, and the judiciary's power to review the constitutionality of laws. The principle of checks and balances is also applied in the judicial appointment system, designed so that multiple institutions share appointment authority to prevent any particular force from dominating the judiciary. These checks and balances are a core principle of democracy, an important institutional mechanism that prevents the monopoly and abuse of power and protects the freedom and rights of citizens. However, it is also necessary to develop a culture of appropriate cooperation and compromise so that checks and balances do not lead to excessive conflict and paralysis of state affairs.

5️⃣ Frequently Asked Questions (FAQ)

Q: What is the difference between the roles of the Constitutional Court and the Supreme Court?

A: The Constitutional Court and the Supreme Court are the highest judicial institutions in our country, each with different roles and powers. The Constitutional Court primarily interprets and protects the constitution. Specifically, it has five powers: reviewing the constitutionality of laws, impeachment trials, dissolution of political parties, jurisdiction disputes, and constitutional complaints. It plays an important role in examining whether laws enacted by the National Assembly violate the constitution and in judging impeachments of high-ranking officials such as the President. In contrast, the Supreme Court is the highest court of the general judiciary, handling the final appeals in all general trials including civil, criminal, administrative, and patent cases. It deals with appeals against the judgments of lower courts and has final authority on legal interpretations. Additionally, the Supreme Court can review the constitutionality and legality of ordinances, rules, and dispositions, but must refer to the Constitutional Court for the constitutionality of laws. Both institutions perform judicial functions, but the Constitutional Court mainly deals with constitutional disputes, while the Supreme Court deals with general legal disputes. They also have different characteristics in terms of composition method, judge qualification requirements, and operation method. The two institutions function in their respective fields for the common goal of protecting the rule of law and guaranteeing the rights of citizens.

Q: Why is the political orientation of judges an important issue?

A: The political orientation of judges becomes an important issue for several reasons. First, constitutions and laws include abstract provisions that leave room for interpretation, and the values and philosophy of judges can influence this interpretation. Especially, the Constitutional Court deals with politically sensitive issues such as the scope of basic rights, the limits of state power, and conflicts of social values. Second, if the ideological orientations of judges are biased, there is concern that judgments favorable to certain political forces or interest groups may be made. This becomes a factor that reduces public trust in the neutrality and fairness of the judiciary. Third, since the final judgment on important social and political issues depends on the decisions of judges, their orientations can have a direct impact on the direction of national policy. For example, decisions on presidential impeachment, dissolution of political parties, or changes to the electoral system can significantly alter the political landscape of the country. Fourth, since judges serve for long periods and make decisions on numerous important cases, their orientations can influence society longer than short-term political changes. For these reasons, securing political balance and diversity in the judge appointment process is considered an important task. However, it should be noted that evaluating judges solely based on political orientation risks overlooking other important qualities such as legal expertise, ethics, and independence.

Q: What role can citizens play in improving the judicial appointment system?

A: Citizens can participate and exert influence in various ways to improve the judicial appointment system. First, they can participate in civil society organization activities. By participating in or supporting civil organizations working for judicial reform, they can raise organized voices. These organizations promote system improvement through various activities such as monitoring, policy proposals, and public opinion formation. Second, they can participate in public hearings or discussions. They can attend public hearings or discussions related to improving the judicial appointment system to present their opinions and discuss with experts. Third, they can join petitions or signature campaigns. They can demand system improvement through the National Assembly or Presidential public petitions, or participate in relevant signature campaigns to gather public opinion. Fourth, they can share information and discuss through social media, blogs, etc. They can use social media to inform about the importance of judicial appointments and problems in the current system, and spread discussions on improvement measures. Fifth, they can use a candidate's will for judicial reform as an important criterion in elections. In presidential or parliamentary elections, they can carefully examine candidates' pledges and will for judicial reform and reflect this in their votes. Sixth, they can closely monitor judicial appointment hearings and present opinions. They can monitor the hearing process and, if there are problems, convey their opinions to members of the National Assembly. Such active interest and participation of citizens can be an important driving force for improving the judicial appointment system.