Some people say that it is impossible for an acting president to appoint a judge to the Constitutional Court when the president is suspended from office rather than removed from office.

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Constitutionally, in situations where the President is suspended from office, the Prime Minister, who is the Acting President, has limited authority to appoint Constitutional Court judges. However, the following procedures and conditions must be followed:

1. Constitutional basis

According to Article 104, Paragraph 2 of the Constitution of the Republic of Korea, Constitutional Court judges are appointed by the President. However, in cases where the President is unable to perform his duties (including when his duties are suspended due to impeachment), the Prime Minister, who is acting President, assumes the President’s authority. Therefore, the appointment of a Constitutional Court judge can also be carried out by an acting authority.

2. Restrictions on proxy authority

The acting president can exercise presidential authority to the extent necessary for normal and emergency national operations. At this time, since the appointment of a Constitutional Court judge is an important power under the Constitution, there must be a clear national necessity for the acting authority to exercise this authority, and if the appointment is delayed, it is justified when serious problems such as paralysis of the Constitutional Court’s function arise.

3. Possibility of political controversy

The appointment of a Constitutional Court judge is an issue that can have major political ramifications depending on the position of a particular political faction. Therefore, if the acting authority enforces this without the consent of the National Assembly or social public opinion, political controversy is likely to increase.

4. Past cases

There have been rare cases in the past where an acting president appointed a constitutional court judge. For example, during the impeachment process of former President Park Geun-hye in 2017, acting Hwang Kyo-ahn did not appoint a judge at the Constitutional Court despite the vacancy, citing political burden.

In conclusion, although the Prime Minister can appoint a Constitutional Court judge as acting president, clear necessity and legitimacy are required to carry out this, and depending on the political situation, it can be highly controversial.