The Constitutional Court of Korea in Jongno District, central Seoul.NEWS1
Yeh Young-june
The author is the head of the editorial board at the JoongAng Ilbo.
Since President Lee Jae Myung took office, I have found myself consulting the Constitution increasingly often.
First came Article 84, which grants presidents immunity from criminal prosecution. Does “prosecution” mean only new indictments, or does it also cover trials already underway before a president's election? Five courts handling pending cases postponed proceedings, temporarily settling the matter without resolving the underlying dispute.
Then controversy erupted over presidential re-election. Although the Constitution explicitly excludes incumbent presidents from benefiting from amendments extending their terms, the National Assembly speaker declared that the matter depended on “the people's will.”
Several scholars and politicians promptly suggested ways around the restriction. Consulting Article 128, Paragraph 2, I discovered possible loopholes, including resignation followed by constitutional revision under an acting president or amendments introduced in stages.
President Lee eventually declared he had no intention of seeking re-election. Still, the discovery was unsettling. Securing the 200 parliamentary votes required for constitutional amendment remains a practical obstacle.
Unification Minister Chung Dong-young's unexpected endorsement of a two-state framework for “Korea” and “Joseon” revived debate over Article 3, which defines Korea's territory as the Korean Peninsula and its adjacent islands.
International realities, including the Koreas' simultaneous admission to the United Nations, cannot justify undermining fundamental national principles.
The government's longstanding position defines inter-Korean relations not as relations between separate states but as a provisional, special relationship oriented toward reunification.
If Chung genuinely supports the two-state approach, why embrace it only after North Korea proposed it?
Even after Lee distanced himself from the idea as unhelpful, Chung continued using the expression “Joseon-Korea relations” before lawmakers. Perhaps he hopes repetition will eventually make the terminology accepted fact. His persistence certainly stands out among today's ministers.
Article 104, Paragraph 2, meanwhile, remains a source of conflict. It stipulates that Supreme Court justices are appointed by the president upon recommendation by the chief justice and with National Assembly consent.
The provision seemingly demands cooperation among all three institutions. Yet neither the Constitution nor subordinate legislation specifies what happens when the president and chief justice disagree.
Perhaps the Constitution's drafters never imagined such a confrontation.
Consequently, the chief justice insists that his recommendation authority is inviolable, while the president maintains that appointment authority is decisive.
When textual interpretation proves insufficient, examining constitutional history can help.
The 1962 Constitution, adopted when Korea returned from parliamentary government to a presidential system, required the president to appoint justices recommended by the chief justice.
The chief justice effectively controlled selection, while presidential appointment conferred the authority of the head of state.
The architects of the 1972 Yushin Constitution, which concentrated extraordinary power in the presidency, predictably removed that requirement. “Must appoint” became simply “appoints,” wording retained ever since. The current Constitution added National Assembly consent.
Arguing that presidential appointment authority takes precedence could therefore imply that the Yushin Constitution offered a preferable arrangement to its predecessor.
My constitutional education continues.
Controversy over a comprehensive farmland survey sent me to Article 121. Its first paragraph establishes the principle that farmland should belong to those who cultivate it. But the second paragraph recognizes farmland leasing and entrusted cultivation under legally prescribed conditions. Emphasizing ownership by cultivators alone ignores agricultural realities.
Why does the prosecutor general remain constitutionally recognized despite the abolition of the Prosecutors' Office? Article 89, Paragraph 6, provides the answer. Anyone hoping to participate in pub conversations about constitutional complaints against court judgments or the controversial crime of distorting the law must also study Chapters Five and Six.
Why have so many government policies suddenly required constitutional scrutiny?
Perhaps the administration's policies and underlying philosophy are approaching the boundaries of constitutionality, or sometimes advancing ideas beyond established legal limits.
The Constitutional Court may consequently become busier than under previous administrations, particularly with constitutional complaints against judicial decisions raising concerns about a fourth level of appeal.
The Constitution once seemed as natural as sunlight or air, requiring little conscious attention. Now I regularly examine its provisions, judicial precedents and scholarly interpretations.
Perhaps I should be grateful for this unexpected education.
A society encouraging constitutional study surely sounds more admirable than the society portrayed in Hyun Jin-geon's short story “A Society That Drives You to Drink” (1921).
This article was originally written in Korean and translated by a bilingual reporter with the help of generative AI tools. It was then edited by a native English-speaking editor. All AI-assisted translations are reviewed and refined by our newsroom.
