The Constitutional Court’s turn comes again

Choi Hyeon-chul

The author is the acting editor-in-chief at the JoongAng Ilbo.

Over the weekend, media outlets were filled with unsavory news involving television personalities. Such cases almost always raise the question of whether the person should step down from their program. The final decision belongs to the individual or the broadcaster. But imagine turning this into law. A statute titled “The Act on Prohibiting ____ from Appearing on Broadcast Programs” would feel unmistakably out of place.

Law is meant to establish general and abstract rules. It cannot attempt to address every specific scenario, and singling out one individual immediately creates unequal treatment. The principle of equality before the law begins to erode.

This is why, as Georg Jellinek argued, the law should contain only the minimum of moral content, backed by state power to enforce compliance. Determining whether a given person or case falls within a legal provision is the role of the judiciary and administrative bodies. A law that bypasses those institutions and applies directly to a specific person or situation is called a “dispositional statute,” something legislators traditionally avoid.

Yet Korea’s legal system contains a surprising number of such statutes. The three major special counsel laws now in force are prime examples. Their very titles begin with names of individuals or incidents, such as “related to former President Yoon Suk Yeol,” “related to Kim Keon Hee,” or “related to the obstruction of the Marine’s death investigation.” Numerous “support acts” offering tailored benefits to specific industries or regions operate the same way.

The Constitutional Court has taken the position that a dispositional statute is not automatically unconstitutional. In a 2008 ruling on the BBK special counsel law, the Court said the Constitution contains no explicit ban on creating statutes that apply to specific people or cases. The key question is whether such differentiation can be justified by rational grounds. While the Court upheld the special counsel law itself, it struck down the “summons by accompaniment” clause that allowed compulsory appearance of witnesses like Kim Kyung-joon without a warrant. A dispositional statute may survive constitutional scrutiny, but it cannot violate basic principles such as the warrant requirement.

Next year is likely to bring another round of constitutional review. Many of the judicial reform bills pushed by the Democratic Party (DP) are already facing constitutional challenges. At a National Assembly committee hearing, Court Administration Office chief Cheon Dae-yeop argued that creating a special tribunal for insurrection cases is impermissible for the same reason dispositional statutes are disfavored. If the law passes, courts may immediately request constitutional review, which would halt all related trials. Former President Yoon Suk Yeol could end up walking free once his detention period expires. As concerns mounted, the DP introduced a bill that would prevent trials on insurrection or treason charges from being suspended during constitutional review. Critics say this attempts to fix one unconstitutional measure with an even more unconstitutional one.

Other DP proposals also appear headed toward the Court. Abolishing the Court Administration Office raises separation-of-powers concerns by weakening the chief justice’s appointment authority. The new crime of legal distortion has been criticized as violating the principle of legality. All are likely to become constitutional cases.

The Constitutional Court, whose nine justices are appointed equally by the president, National Assembly and chief justice, is frequently judged through a political lens. Many observers see the current bench as leaning 6—3 toward the progressive and centrist side. Yet the Court’s role is to apply constitutional values, not political preferences. Last April, predictions about the impeachment trial of former President Yoon centered on a presumed 5—3 ideological split, but the decision was unanimous. Senior judges, legal experts note, tend to prioritize legal principles over political identity.

Still, concerns linger. The governing party has floated allowing constitutional complaints against court rulings, a longstanding institutional ambition of the Court. If such a concession were offered to secure favorable rulings on judicial reform bills, the outcomes of constitutional challenges could become unpredictable. A declaration of constitutionality could weaken the boundary that has restrained dispositional legislation. The thought is unsettling. At this rate, one may wonder whether a “Law Prohibiting Reporter Choi from Writing Columns” might appear next.

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.