The 'constitutional state

1. The 'constitutional state' is a state that operates according to the constitution. Although the abstract constitution cannot provide all the answers to the specific problems the state will do, the government of the constitutional state operates within the scope of the line drawn by the constitution 'should' and 'should' not'. In other words, the activities of the government are bound by the constraints created by the constitution.

2. When applying the Constitution to a specific reality, there can be many interpretations. Different interpretations of the Constitution are conflicting with the act of Acting President Choi Sang-mok not appointing one of the three candidates for the Constitutional Court elected by the National Assembly. Regarding the constitutional provision that "the three persons elected by the National Assembly are appointed by the President", Acting President Choi Sang-mok interprets that even if elected by the National Assembly, the President has the discretion to appoint or not, and lawyer Kim Jeong-hwan who requested a constitutional appeal trial or National Assembly Speaker Woo Won-sik who requested a competency dispute trial are interpreted as automatically appointing the three persons elected by the National Assembly by the President. There is a dispute over the interpretation of the constitution.

3. Most constitutional countries have some mechanisms in place to resolve constitutional disputes. In the case of the Constitution of the Republic of Korea, the resolution of the dispute is left to the decision of the Constitutional Court. In other words, if the Constitutional Court decides that the omission of appointment is unconstitutional in a competency dispute trial or a constitutional petition trial, the act of not appointing an elected constitutional judge by acting Choi Sang-mok is unconstitutional.

Therefore, if acting Choi Sang-mok does not appoint Judge Ma Eun-hyuk even after the unconstitutional decision, the government will not openly abide by the Constitution. In Korea, the operation of the government is not bound by the Constitution, and in this regard, the Republic of Korea is not even a constitutional state.

4. The reason for making such an obvious remark is that there are attempts to make it not take for granted. The Chosun Ilbo's article title below is "Choi Haeng, not bound by the Constitutional Court's decision... Careful appointment of Ma Eun-hyuk." The Constitutional Court's decision here is the official content of the Constitution, which was confirmed through constitutional procedures. Does not being bound by the Constitution mean that the government is not bound by the Constitution, and does it literally mean that we should not make a constitutional state?

5. In addition, according to the article, a high-ranking government official said, "Apart from the constitutional decision, we will separately examine how the maximum act and the government are legal to act."

Of course, the administration must routinely review the legality of its activities. However, once a dispute arises and a trial is made, and that is the final conclusion within an official state body. This means that even if the Constitutional Court or the Supreme Court decides, if the administration can act as an independent interpretation of the law separate from the decision, the executive branch will also serve as a judicial branch. Is Korea a country with no separation of powers?

6. Some argue that Choi Sang-mok may not be appointed against the Constitutional Court's decision, as the National Assembly often does not legislate a law that the Constitutional Court has ruled unconstitutional. False comparisons are popular in the Korean public sphere these days, and this is one of them.

If the Constitution decides that a law is unconstitutional, the law's effect will be suspended. (Constitutional inconsistency is also suspended after a certain period of time.) In this context, for a state agency to act against the Constitutional Court's decision, it must continue to apply and enforce the law that has been declared unconstitutional. Cases in which the National Assembly has not made alternative legislation deserve sufficient criticism for their irresponsibility and incompetence, but they do not violate the Constitution against the decision to unconstitutionality.

On the other hand, when it is decided that failure to make an appointment violates the constitution, the only way not to violate the constitution is to make an appointment. To make a proper comparison, even if a decision is made unconstitutional, the refusal of the maximum officer to make an appointment is the same as continuing to arrest people for adultery even after a decision is made unconstitutional for adultery.

7. If Acting President Choi Sang-mok wants to declare to the world that the administration of the Republic of Korea is not constrained by the Constitution, and that the Republic of Korea has begun to break away from the constitutional state, he has to appoint Judge Ma Eun-hyuk even after the Constitutional Court ruled it unconstitutional.

I don't think someone who's worked as a bureaucrat for decades would be that unruly.