Case on the Appointment of the Acting Prime Minister

[10-2 KCCR 1, 98Hun-Ra1, July 14, 1998]

A. Background of the Case

When the National Assembly could not vote on the ratification of Kim Jong-Pil, the representative of the ruling party coalition, as the new Prime Minister, President Kim appointed him as the acting prime minister. The entire opposition party brought a competence dispute against the President, but their request was dismissed for lack of justiciability requirements.

On February 25, 1998, the respondent President Kim Dae-Jung took office, and on the same day appointed Kim Jong-Pil as the prime minister and sought the consent of the National Assembly on that matter. The Speaker of the National Assembly, on the same day, tried to convene the 189th Extraordinary Session but to no avail, due to the absence of the opposition Grand National Party (hereafter "GNP") members. The National Assembly continued to run an empty cycle because of the partisan confrontation.

Then, the 189th Extraordinary Session began on March 2, 1998, and the Speaker brought the above appointment as an item on the agenda. Soon after, the representatives began anonymous voting according to Article 112 Section 5 of the National Assembly Act. Members of the National Congress for New Politics (NCNP) and the United Liberal Democrats (ULD) interrupted the vote by blocking access to the ballot dispensers and the poll boxes, accusing the GNP of casting blank votes. A noisy altercation ensued, making it difficult to continue, upon which the voting was suspended and then resumed, but normal proceedings were impossible due to further suspension. When the time passed midnight, the 189th Session was automatically adjourned.

As the ratification of the appointment failed, the President went ahead to receive recommendations on the appointment of ministers from the outgoing Prime Minister Ko Kun, who was in office until March 2, 1998. The President then appointed all ministerial positions based on his recommendations and appointed Kim Jong-Pil as the Acting Prime Minister after accepting Ko's resignation.

Thereupon, the plaintiffs - all 156 representatives of the GNP - submitted this competence dispute before the Court, contending primarily that the President infringed upon the power of the National Assembly and the plaintiffs to ratify the

appointment of the Prime Minister, or alternatively that he infringed on their power to review and vote on the same issue.

B. Summary of the Decision and Relevant Decisions

The Constitutional Court dismissed the request for adjudication on competence, as follows.

Justice Kim Yong-Joon reasoned that the power to ratify the appointment of the prime minister belongs to the National Assembly, which, therefore, must be a party to this competence dispute. Only when the majority does not consent to the National Assembly becoming a party, the Court may grant a third party standing to partial components of the National Assembly in order to protect the minority. The majority in the National Assembly or the negotiating body consisting of the majority, can contemplate venues to restore the power of the legislature through its resolution. Therefore, it is not necessary for this case to grant a third party standing, which is not statutorily sanctioned anyway. As to the claims of prospective infringement, the power to review and vote concerns a legal relationship among the representatives themselves or between them and the speaker and does not concern the relationship between the President and the representatives. Therefore, the appointment of the prime minister by the President is not likely to infringe upon the representatives' power.

Justices Cho Seung-Hyung and Koh Joong-Suk pointed out that the President neither refused to submit the appointment for ratification nor finalized it against the legislature's disapproval. His action merely amounts to appointing a temporary substitute to the prime minister as authorized by Article 23 of the Government Organization Act. Even if there had been any procedural fault in his action, it does not and is not likely to infringe upon the power of the legislature or its members. The plaintiffs who form the majority can influence the outcome of the appointment and resolve the dispute thereby. Thus, there is no legally protectable interest in this case.

Justices Shin Chang-On and Chung Kyung-Sik continued to maintain their previous position that components of the legislature such as individual representatives or negotiating bodies that are not stipulated by Article 62 Section 1 Item 1 of the Constitutional Court Act cannot become parties to competence disputes.

Justices Kim Moon-Hee, Lee Jae-Hwa, and Han Dae-Hyun held that the National Assembly is a conferential body, and its position is the aggregate of the

positions of individual representatives, expressed through their votes. The plaintiffs may file a competence dispute alleging simultaneous infringement on the ratification powers of the legislature and on their own power to review and vote. Since ratification by the Assembly is an indispensable substantive prerequisite to the appointment of the prime minister, the appointment thereof without ratification clearly violates the Constitution and cannot be justified by the intention to prevent a vacuum in the administration, even given the existence of past customs.

Justice Lee Young-Mo stated that under such special circumstances as the Assembly's failure to reach a decision and the anticipated vacuum in administration, the President can appoint an acting prime minster until the Assembly reaches a decision. Thus, the respondent’s action did not infringe upon the ratification power of the National Assembly.

On the same day the decision above was made, the Constitutional Court delivered a decision of dismissal with a similar distribution of opinions in the case where National Assembly members of the majority party filed a competence dispute against the President’s appointment of Han Seung-Heon as acting chairman of the Board of Audit and Inspection without the ratification of the Assembly, after the Assembly failed to reach a decision on the vote (98Hun-Ra2, July 14, 1998).

C.Significance of the Decisionand Aftermath of the Case

The plaintiffs condemned this decision as a political, not a judicial, decision and as the Court's self-negation of its own raison d'étre. Some pointed out that the Court should not evade the substantive review of politically important cases through legalistic techniques or procedural pretexts, thereby legitimizing the establishment. Others interpreted it as a decision that urged politicians to resolve political disputes on their own, not through judicial resolution.

On August 17, 1998, about one month after this decision, the appointment of Kim Jong-Pil as Prime Minister was ratified in the National Assembly in the presence of 225 members, with 171 in favor, 65 opposed, 7 abstentions and 12 invalid votes. The appointment of Han Seung-Heon as chairman of the Board of Audit and Inspection was also ratified on the same day, with 257 votes in total, out of which 182 were in favor, 68 opposed, 5 were abstentions and 2 were invalid.