Court-Centred Constitutionalism in an Emerging Democracy: Lessons from South Korea and the Impeachment Case of 2016/17

Constance Lee

Central Queensland University

In many respects, Park Geun-Hye’s impeachment saga of 2016/17 is just another piece of mounting evidence that the Constitutional Court is gaining status in the political life of South Korea. However, reservations regarding the role of the Court continue to be raised. Is the ‘judiciary’ exceeding its powers in determining issues of a political nature? Or is it simply an example of government posturing to validate majority decisions?  I propose an alternative perspective. Instead of asking whether the Court’s involvement in mega-political issues represents a politicisation of court decisions or a ‘judicialisation’ of majority decisions, it may be more accurate to ask whether a specialised constitutional court assumes a unique and hybrid function in the specific cultural, historical and political context of South Korea.  

Given its relationship to the wider democratic system, the Korean Constitutional Court’s involvement in highly politicised issues – rather than being a perversion of constitutional norms – is an integral part of its operational workings. According to this view, accusations that the Court is over-reaching its powers may be an indictment on the paucity of orthodox constitutional vocabulary. Traditional constitutional discourses involving courts are commonly premised on a clearly structured dichotomy between the different arms of government. Such a closed perspective results in gaps that serve only to further polarise courts and legislatures. It also acts to downplay the symbiotic relationship between constitutional courts and public protests, thereby undermining the potential to realise constitutional norms in non-Western constitutional states.   

The Path to Impeachment

The purpose of impeachment is to protect citizens from abuse of power by an incumbent. By removing from office those who have acted beyond the limits of their power, presidential impeachment mechanisms reinforce core constitutional principles such as the rule of law, separation of powers and popular sovereignty. Though constitutional norms such as judicial independence and the rule of law were entrenched in the second Korean Constitution in 1987 as part of a larger democratic movement, in the backdrop of Korea’s authoritarian history and its ‘Imperial presidential’ structure, more than a formal separation of powers is required to make this effective. The impeachment process illustrates this.

Article 65 of the Constitution of the Republic of Korea (‘Hunbup’) prescribes the process for impeachment. The provision enshrines the separation of powers between the National Assembly and the Constitutional Court, providing the former with the accusatory function and the latter with the adjudicative function. The National Assembly must pass a motion for impeachment of public officials who have acted in contravention of the Constitution and other laws, before the case can be heard before the Constitutional Court (Hunbup, Article 65(1)). A motion for impeachment must be proposed by at least one-third of the Parliament’s members and must be approved by at least two-thirds of the members (Hunbup, Article 65(2)). At this stage, political parties must judge whether the alleged offences constitute sufficient grounds for impeachment.

The second stage involves a criminal procedure in which the Constitutional Court must determine whether the offence is sufficiently grave to warrant removal from office, due to the severity of the damage to the Constitution or other laws (Constitutional Court Act, Article 40). The nine judges of the bench have a maximum of 180 days for deliberating and deciding on the case and at least six judges must decide for the impeachment of the President (Hunbup, Article 113(1)). Art 65 therefore deliberately sets a rigorous procedure and institutional barriers before a President can be impeached. This is because presidential impeachment is a means of last resort that is designed to prevent an easy removal from office and from being used as a ‘partisan weapon.’ The person against whom a motion for impeachment has been passed is suspended from exercising their power until impeachment has been adjudicated. In the meantime, the Prime Minister assumes the presidential role (Hunbup, Article 65(3)).

This two-step process means that the Constitutional Court exercises final oversight over the National Assembly’s decision to impeach. This is particularly significant given that the grounds for impeachment are broad. Though it is clear that without this division the impeachment provision may be abused for political ends, there is the concern about the Constitutional Court’s role as the final arbiter of law. In the absence of an avenue for further judicial review for impeachment cases, the Constitutional Court has final say over this matter. It is important that the Constitutional Court is guided by the separation of powers in forming its decision and does not overstep the bounds of its legitimate authority. It is, however, the Constitutional Court’s historical relationship to democracy that ultimately gives it legitimacy in this role.

The Constitutional Court and Democracy

The historical cases of Roh and Park have illustrated that though the role of the Constitutional Court has become a symbol of the need for dispersing power among the various branches of government, it is the democratic voice that has been the real driving force behind the impeachment process. In Korean history, public protest has been the way to overcome autocratic regimes, to compel reluctant lawmakers to pass motions for impeachment to safeguard the rule of law, and further advance democratisation. It now seems that the symbiotic relationship between democracy and the Court may pave the way to further diluting presidential power in a system historically darkened by the long shadow of autocracy.    

The justices of the Constitutional Court in Roh’s case held that impeachment is appropriate only when it is ‘necessary to rehabilitate the damaged constitutional order.’ The purpose of protecting the Constitution is a democratic one, because in emerging liberal democracies such as Korea the constitution is the most democratic source of law and can only be amended through national referendum (Hunbup, Article 130). The Court in Roh’s case also equated constitutional order with ‘free and democratic basic order,’ which in turn translates to a respect for basic human rights, the doctrine of separation of powers, judicial independence and parliamentary institutions. The Court further opined that the impeachment provision clearly indicates that no one – including the President – is above the law and that the state is committed to the rule of law.

In this context, the impeachment case of Park Geun-Hye is particularly illuminating for several reasons. Although the design and application of Article 65 reflects the separation of powers between the legislature and the judiciary, the provision cannot fulfil its intended function if members of the National Assembly are unwilling to pass motions for impeachment due to their personal and political alliance with the incumbent. A large parliamentary majority held by the president would be able to protect the president against impeachment by members voting against it or boycotting the poll. This was the case for Park, where she effectively controlled the National Assembly with 129 members (out of 300) belonging to her party. There is no doubt that her political power discouraged the members from passing a motion for her impeachment. In the political and historical context of Korea, characterised by a strong president and a weak parliament, the distribution of power among and within the branches of government is therefore essential to the initiation, execution and outcomes of an impeachment process.

Although an impeachment motion against Park was eventually passed, this was only achieved after weeks of mass anti-Park demonstrations called ‘candlelight vigils’ which began on 26 October 2016. The use of candlelight vigils as a form of protest is a symbol of peaceful movement against injustice. Week by week, demonstrations grew and on 3 December, the day the proposal for the impeachment motion was passed, 2.3 million people participated in the nationwide anti-president rally, the largest in the nation’s history. It appears unlikely that the impeachment motion would have been passed by the National Assembly had not the public taken their outrage and disapproval of Park to the streets. Whilst public pressure compelled members of the National Assembly to pass the motion for impeachment, there is no guarantee that the same would occur in future, potentially rendering Article 65 a nominal provision.

However, political demonstrations have historically been the impetus for Korean democratisation. The April 19 Revolution saw the resignation of the oppressive ruler, Rhee Syngman, and the June Struggle bought about democratic reforms after years of authoritarian rule. Even after democratisation, political protest has not slowed down, as illustrated by the anti-Park candlelight protests. Whilst the power of public protest is undeniable, it may seem that such ad hoc democracy may not be sustainable, calling upon the people to fulfil the responsibilities of officials every time there is a political crisis. However, we cannot forget that constitutionalism in Korea is an ongoing process. As part of this process, the Constitutional Court has now acquired its own form of legitimacy. It stands as a symbol for the pressing need for a separation of powers in the shadow of Korea’s authoritarian past. It seems that the continual synergetic oscillation between the people and the Court is moving Korean constitutionalism along a continuum towards greater legitimacy.

Already talks are underway for reforms aimed at systematically reducing presidential powers. The current president, Moon Jae-In, has vocalised a desire to change the governmental system through constitutional amendment. If we see this promise fulfilled, it would represent a significant historic shift toward mending the democratic deficits in the Korean political system, with its overly strong executive – which in the past, has been such a fecund breeding ground for systematic corruption. A revised form of the Korean presidential system, with an improved mechanism for impeachment, will likely enhance Korea’s commitment to the rule of law, and in this case, strengthen the public voice. The continued viability of Korean constitutionalism therefore requires a delicate balance and cooperation between judicial independence and popular democracy, with the common goal of upholding the rule of law.

Constance Lee is a Lecturer in Law at Central Queensland University.

Suggested citation: Constance Lee, ‘Court-Centred Constitutionalism in an Emerging Democracy: Lessons from South Korea and the Impeachment Case of 2016/17’ IACL-AIDC Blog (17 April 2019) https://blog-iacl-aidc.org/2019-posts/2019/4/17/court-centred-constitutionalism-in-an-emerging-democracy-lessons-from-south-korea-and-the-impeachment-case-of-201617