Symposium: Impeachment of the President as Revolution under the Rule of Law

Jeong-In Yun

Korea University

On 10 March 2017, all eyes were on the Grand Courtroom at the Constitutional Court of Korea. The final proceeding of the impeachment trial against President Park Geun-hye was being broadcasted live across the country. Justice Jung-mi Lee, acting president of the Constitutional Court, stated that "the Constitution is the basis of the existence of all state organs including the President, and the people is a source of the constituent power of such Constitution. Bearing it in mind, the Court is now in the presence of the pronouncement of the final decision, with a mind of the party standing in front of the court of history." She then went on to summarise the grounds for the impeachment. The Court ordered, by a unanimous vote, the impeachment of the President. With the constitutional judgment in the Impeachment of the President [Park Geun-hye] Case (29-1 KCCR 1, 2016Hun-Na1, 10 March, 2017), therefore, the head of State was ousted from office, by legal means, for the first time in Korean history.

Background to the impeachment

A political scandal, revealed in late 2016, is what triggered the impeachment. It was disclosed that Choi, a lifelong confidant of President Park and an individual acting in her personal capacity, had intervened in state affairs. She had substituted the President's decisions with her own and had made decisions, not in the public interest, but in her personal interest.

Loss of public trust in the President and the government had been gradually accumulating already. Despite several maladministration cases, the National Assembly provided little oversight over the executive branch, and the President had not been responsive to the people. Korean democracy seemed at the time to be in decline.

With this latest scandal, therefore, the people ran out of patience with the administration. Starting in October 2016, people filled the streets every weekend holding candles and asking for the President's resignation or impeachment. President Park initially denied any wrongdoing and refused to resign; however, as pressure mounted, she announced she would accept the National Assembly’s decision on her fate.

Parliament was slow to act, only proposing an impeachment bill on 3 December 2016 after public pressure had intensified. Six days later the bill was passed by 234 votes out of 300. The President was immediately suspended from office as per Article 65(3) of the Constitution, and impeachment proceedings initiated in the Constitutional Court.  

Article 65(1) of the Constitution provides that the National Assembly may institute impeachment proceedings against high officials (such as the President, the Prime Minister, Justices, and Judges) who violate the Constitution, or other laws, in the performance their official duties. This is not limited to laws related to the civil service or criminal law, but covers any acts.

The Constitutional Court of Korea once previously had to decide on the fate of a President. In 2004, the National Assembly initiated impeachment proceedings against President Roh Moo-hyun, then his second year of office. Parliament’s action was motivated by political strife between the President and members of the National Assembly, whose terms were coming to an end just two months later. Contrary to the reaction against President Park, the people took to the streets to demand that President Roh not be impeached. In this case, the Court held, "whether or not to remove a public official from office should be determined by balancing the 'gravity of the violation of law' by the public official against the 'impact of the decision to remove'." Ultimately, the Court did not impeach President Roh (Impeachment of the President [Roh Moo-hyun] Case: 16-1 KCCR 609, 2004Hun-Na1, 14 May, 2004).

Impeachment of President Park

In the 2017 case against President Park, the Constitutional Court had to decide whether she had violated the Constitution, or the law, in the performance of her official duties by (1) permitting a private individual to intervene in state affairs and abusing presidential authority; (2) abusing the power to appoint and dismiss public officials; (3) infringing on the freedom of the press; and/or (4) violating the duty to protect the right to life in the Sewol ferry incident. In line with the precedent set in the case against President Roh, should the court find there had been such a violation it also had to decide whether the breach was sufficiently 'grave' to justify the removal of the respondent from office.

After three months of deliberation, the Court found the President was guilty of the violations outlined in (1) but acquitted her of those in (2), (3), and (4). It held that the offences committed under (1) amounted to negligence of the duty to serve as "a public servant of the 'entire' people" (a requirement set in Article 7(1) of the Constitution). The Court, thus, found her to have failed to perform her duties in a fair and balanced manner.

The Court also identified further violations, including of the right to property. It found the freedom of enterprise of some companies was contravened when the President made it mandatory, without any legal basis, for them to assist companies connected with Choi. It also concluded the President had violated the duty of confidentiality by making confidential documents related to state affairs available to Choi and her assistants. Particularly, the Court confirmed "[t]he respondent, by enabling Choi to intervene in state affairs, assisting Choi to seek personal interests by abusing the authority delegated by the people, and at the same time concealing this completely, has undermined the principle of representative democracy and the rule of law, and has gravely violated the obligation of the President to serve the public interest”. It further found, “the respondent’s acts of violating the Constitution and the law are a betrayal of the people’s confidence, and should be deemed as grave violations of the law that is unpardonable from the perspective of protecting the Constitution.” (29-1 KCCR 1 [48], 2016Hun-Na1). Consequently, President Park was dismissed from office within the constraints of the existing constitutional frame, and thus whilst respecting the rule of law. 

The significance of the judgment

This is a landmark judgment for several reasons. Firstly, from a normative perspective, it is confirmation that the Constitution and the principle of the rule of law function correctly and that nobody is exempt from the rule of law. It was the first time in Korean history that the rule of law had prevailed over political power. Previously, throughout thousands of years of absolute monarchy and several decades of autocratic rule and military dictatorship, national leaders had been generally regarded as extraordinary figures that are above the law. While there had been several revolutionary movements before, the people had never previously succeeded in removing a leader from power using legal processes (during the ‘April Revolution’ in 1960, then-President Syngman Rhee resigned in response to the demands of student protesters, but it was nonlegal). With the 2017 judgement, however, they succeeded in removing a person in power from office, and to do this in the name of the Constitution. This marked a peak moment for the rule of law in Korea.

Secondly, from the perspective of democracy, the judgment is significant because it reaffirms the fundamental principle of representative democracy and the accountability of the President. Many presidential regimes have a common problem: difficulties with limiting presidential power because it is almost impossible to remove an unfit President from office. Even in the United States, a long-established presidential system, this has been problematic, especially in recent years.

In South Korea too, there was the potential for such abuse of power. This is because the Constitution provides that the President is immune from criminal prosecution during her/his term (article 84 of the Constitution). Additionally, being held accountable at the polls is no threat, as the Constitution provides only for a single five-year term (article 70). These are just a few of several institutional and non-institutional factors that contribute to South Korea having a particularly strong form of presidentialism, under which it is extremely difficult to check presidential power. Justice Ahn Chang-Ho noted in his concurring opinion that the “power structure under the current Constitution, which is being criticized as a so-called ‘imperial presidency,’ was the requisite that made such violations of the Constitution and statutes possible” (29-1 KCCR 1 [60], 2016Hun-Na1). Through this judgment, however, the Court, showed that even a democratically legitimate President can be ousted from office if he/she violates the constitutional order in a manner that undermines public trust in the system.  

Last but not least, the judgment is notable because it amounted to a ‘revolution’ (see, Seon-Taek Kim & Jeong-In Yun, 2017; Jong-Cheol Kim, 2017). Unlike the traditional notion of revolution, current understandings of the concept do not necessarily feature violence or illegality (see Jack A. Goldstone, 2001, at 142-4). Today a transformative change to the established social order or political hegemony – irrespective of who the actors are, or whether they acted within or outside the existing constitutional order – is regarded as a revolution. That is to say, all it takes is a rupture with the past and new start. By this understanding, the impeachment judgment of 2017 is revolutionary because the people, with the support of the Constitutional Court, changed the head of State under the existing constitutional order.

From the fall of 2016 to date the Court handed down its final decision, more than 17 million people participated in the candlelight vigils. During this period, people demonstrated peacefully, and there was no reported violence; this was deliberate – the protestors did not want to provide the authorities with an excuse that would allow them to disperse the gatherings by force. I think the message of the candlelight vigils was evident: the people wanted to break with the past and rebuild the state, but without violating the law. In that respect, this judgment resulted in a peaceful revolution which combined the ‘substantive legitimacy’ of the sovereign people with the ‘formal legality’ of the existing legal order (Kim & Yun, 2017, at 5).

This judgment has symbolic significance as well. In Korea, where some people are still nostalgic about the previous, authoritarian, regime, a ‘break-up’ with the former dictator’s oldest daughter represents a shift in the thinking that has long dominated Korean politics. This judgement provided a new perspective on constitutional democracy, the rule of law, and limited government as protected by the Korean Constitution. Because this case signals a ‘paradigm shift’ in constitutional interpretation and understanding, I conclude that the Impeachment of President Park Case is not just a landmark judgment but a constitutional revolution under the rule of law. At least, a constitutional revolution as described in the ‘Constitutional Landmark Judgments Project’ introductory post.

Jeong-In Yun is Research Professor at Legal Research Institute of Korea University.

Suggested citation: Jeong-In Yun, “Impeachment of the President as Revolution under the Rule of Law” IACL-AIDC Blog (3 December 2020), https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-asia/2020/12/3/impeachment-of-the-president-as-revolution-under-the-rule-of-law