Impeaching the President in South Korea: A Judicial Perspective

Written by: Younju Jung
Posted on December 23, 2019

The U.S. is now in the midst of Donald Trump’s impeachment. The impeachment system in U.S. is a series of political procedures, with the prosecution from the House of Representatives and the trial in the Senate. What about the presidential impeachment process in South Korea? You may not know, but Koreans already experienced those processes twice. However, unlike the U.S., the impeachment procedure is quite normative and judicial.

The Constitution of Korea provides that the Constitutional Court (hereinafter referred to as “the Court”) should decide whether to impeach high officials including the president. The Court consists of nine Justices. While they are all appointed by the president, three of them are recommended by National Assembly and three by the Chief Justice of the Supreme Court. They mostly deal with the constitutionality of laws, but they have become more famous with two presidential impeachment cases.

What are the requirements for this normative impeachment? The Constitution article 65 provides that the ground for impeachment is the ‘violation of the Constitution or other laws’. The Court says that the ‘Constitution’ includes the unwritten Constitution formed and established by the precedents of the Court as well as the expressed Constitutional provisions. Moreover, it mentions that ‘other laws’ include not only statutes in their formal context, but also, inter alia, international treaties that have the same force as statutes and international laws that has been generally accepted.

Meanwhile, the Court additionally asks for the ‘gravity of the violation’ in order to impeach the president. If the Court has to remove the president despite one’s trivial breach, this can make no sense with the principle of proportionality. This is why the Court dismissed the former President Roh’s case. The Court regarded that the breach of law was insignificant and there was no active intent against the Constitutional order. However, in the case of former President Park, the Court decided to remove her from the position as her breach was too grave. Park mobilized state agencies and organizations readily and repeatedly to pursue the personal gains of her friend Choi Sun-Sil. The Court deemed that benefits of protecting the Constitution by removing the president outweighed the national loss that could be incurred by the removal.

What is the advantage of this judicial, normative process, comparing to the political one? I assume that the conflict can be solved in a mild, ultimate way as the court gives an answer with the ‘language of law’ in extreme situation (Of course, the prerequisite of this is the trust of people toward the court). If the motion to impeach occurs, there can be lots of rumors and scandals regarding the president, some of which include groundless, exaggerated ones. If the court, quite a third-party organization, can make a decision through screening all the evidences in this situation, people can be persuaded easily and the mess can be settled peacefully.

This was what exactly happened in South Korea between 2016 and 2017. Even though the candlelight protests were brought in a peaceful way, we couldn’t expect how protests would spread out as more and more people were gathering into the squares. Fortunately, the Court made a timely judgment, which enabled us to overcome the continuous instability and to take further steps. This solution seems to be possible because people somewhat put their confidence in the Court, which was newly organized by 1987 Constitution.

Below are statements from the decision of former President Park’s impeachment, which I personally love to read: “The purpose of the impeachment system is to realize the principle of the rule of law which prescribes that nobody is above the law…The considerable political chaos that may occur by removing a President elected by the public from office should be deemed an inevitable cost of democracy paid by the nation in order to protect the basic order of liberal democracy”.