A Closer Look at the Korean Constitutional Court’s Ruling on Park Geun-hye’s Impeachment

Written by Hyun-Soo Lim

On March 10th, 2017, the Constitutional Court of the Republic of Korea unanimously approved the National Assembly’s December 2016 vote to impeach President Park Geun-hye. The Court’s decision brought a long-awaited end to the uncertainty surrounding Park’s fate, whose approval ratings fell to an embarrassing 4% after an immense corruption scandal broke out in October 2016 revealing that Park granted excessive control over national affairs to her long-time friend, Choi Soon-sil.[1]

The widely-celebrated decision made Park the first president in Korean history to be ousted by the judiciary. The 89-page decision has been praised for its remarkable clarity in writing style and the minimization of political controversy through a unanimous holding. The Court dispelled concerns that its conservative ideology (currently consisting of 7 conservative/right-of-center Justices, and only 1 progressive)[2] may influence the legal analysis of the impeachment.

Put simply, the decision can be boiled down to this: Park’s “acts of violating the Constitution and law are a betrayal of the public trust,” thereby leading the Court to conclude that the “benefits of upholding the Constitution by dismissing her are overwhelming.”

The Court began by addressing the procedural complaints Park’s attorneys raised. Despite the embarrassingly irrational and absurd behavior of Park’s legal team, which cast doubt as to whether they would accept any decision against their client, the Court went to great lengths to resolve their concerns.

First, Park’s counsel challenged the National Assembly’s drafting and passing of the impeachment bill, claiming namely that i) the evidence presented to the Assembly at the time of voting was inadequate because it consisted of news articles and the indictment (and not results of an independent investigation by a judiciary committee); ii) the bill passed without any open debate on the floor; and iii) the bill contained multiple grounds for impeachment that were not clearly demarcated, thus preventing the Assembly Members from voting on each ground separately. In response, the Court highlighted that nothing in the procedure was illegal or unconstitutional, and stated that the judiciary must respect the political branch’s discretion over its decision-making procedures.

Park’s procedural claim that the decision by an 8-member Court infringed upon her right to be tried by nine Justices was dismissed with even a stronger tone. The Court retorted that, given that a replacement could not realistically be appointed in a timely manner, this “is ultimately a claim that there should not be a hearing, essentially resulting in neglect of the current state of a constitutional crisis.” The Court also reminded Park that there is no constitutional violation as long as there are seven or more Justices participating in the decision.

It then moved on to the four central claims in the impeachment bill:

On abuse of power in appointment of civil servants

The bill alleged that Park ordered the demotion of civil servants in the Ministry of Culture, Sports and Tourism in retaliation for their interference with Choi Soon-sil’s pursuit of private interests. The Court did find that the ministerial staff were demoted or dismissed based on Park’s orders, but deemed the evidence insufficient to conclude that the demotion occurred to protect Choi’s interests.

On Park’s infringement of the freedom of speech/press

The bill attempted to establish that Park pressured Segye Ilbo (a Korean newspaper) to fire its CEO for publishing an exposé suggesting that Chung Yoon-hoi (Choi Soon-sil’s ex-husband) was running the presidential office like a puppet master. The Court found that Park encouraged her staff to “thoroughly investigate” the Blue House leak that led to the exposé. Nonetheless, the Court held that there was insufficient evidence to conclude that Park was directly involved in the pressure exerted on Segye Ilbo.

On the duty to protect the right to life and to faithfully carry out presidential responsibilities

Park’s utter failure to direct rescue efforts for the tragic sinking of the Sewol Ferry in April 2014 that killed more than 300 people, most of them high school students, was a major source of distrust in her presidency. The impeachment bill included this failure as a basis for impeachment under Park’s duty to protect the right to life of citizens and the duty to faithfully carry out her presidential responsibilities. While recognizing the tragedy of the incident, however, the Court held that “a crisis does not give rise to specific duties to act, such that the President must participate in rescue efforts directly.” The panel also ruled that the constitutional duty to “faithfully carry out responsibilities” is “a relative and abstract duty” that cannot be adjudged in an impeachment proceeding.

On the abuse of power in granting political power to Choi Soon-sil

The Court found that Park had ordered Ahn Jong-bum, the Presidential Policy Advisor, to establish two dubious foundations under Choi’s control, extorting more than $69 million from Korean conglomerates. The Justices unanimously held that these orders were not legitimate public duties and that they violated the Constitution, the Public Servants Act, the Ethics of Public Servants Act, the businesses’ freedom of corporate management, and the right to property.  Park was also found to have violated the law that requires civil servants to protect official secrets, as she had a presidential adviser pass on many official documents with sensitive information to Choi (allowing Choi to edit her speeches, give feedback on cabinet meeting notes, etc.).

In sum, the Court only recognized (as legitimate for the purposes of impeachment) the last prong, the abuse of power to benefit Choi Soon-sil. The Court then discussed whether this abuse of power was grave enough to warrant impeachment:

“The President must not only exercise one’s privileges in accordance with the Constitution and the Law, but also make transparent one’s exercise of official duties to be accountable by the public. Yet, [Park] thoroughly concealed from the public Choi’s interference in national affairs, denying the allegations and even criticizing those who raised the concern each time the issue came to light. Therefore, the National Assembly and the media could not properly function as checks and balances. Moreover, the defendant engaged in, and supported, Choi’s pursuit of private interests . . . . [This] occurred throughout her presidency in a persistent manner . . . . Such unconstitutional and illegal acts damaged the principle of a representative democracy and the rule of law.”

The Court further highlighted that Park refused to undergo questioning by prosecutors and denied authorities access to search her presidential compound, despite her earlier promises that she would faithfully comply with prosecutorial inquiry. According to the Court, Park Geun-hye’s statements gave no indication that she has the “will to safeguard the Constitution” or to refrain from repeating the illegal acts.

What is next for Park Geun-hye?  

The immediate effect of the ruling was to strip Park of her presidency, which removed her immunity from prosecutorial investigations. The Constitutional Court stressed that it ruled on the legitimacy of the National Assembly’s decision to impeach, and not on Park’s criminal guilt. Whether Park will face criminal charges depends on a separate set of proceedings, which are well under way as Prosecutors have recommended 13 charges against Park (including abuse of power, coercion of donations, and the sharing of state secrets). On March 30th, Park was formally arrested under corruption and coercion charges; she faces trial in the coming weeks.

While there is no possibility of appeal of an impeachment ruling, Park will likely fight the criminal charges until the very end. She was silent on whether she accepts the Constitutional Court’s ruling, which elicited much criticism from opponents who see it as a sign of no repentance; her lead attorney has already told reporters that he cannot accept the Court’s decision, arguing that “the biased Korean media, coupled with left-leaning and North Korean sympathizing labor unions, have led anti-Park protests to the streets of South Korea.”

Regardless of the outcome of the criminal proceedings, the impeachment of Park marks a significant turning point in Korean political history. Park has been a unique and persistent force in Korean politics since 1974, when she replaced her assassinated mother as the acting First Lady to the dictator, Park Chung-hee. Many regard her popularity to be owed largely to her father’s contribution to Korea’s dramatic economic development. There is reason to celebrate this “end of the Park Chung-hee era or fantasy” which the Constitutional Court of Korea solidified with its approval of the impeachment. Now, we can only hope for the beginning of a renewed democracy.

[1] For a timeline of the corruption scandal and the impeachment, see Bryan Harris,  Timeline: Downfall of Park Geun-hye, Financial Times (Mar. 9, 2017), https://www.ft.com/content/9e5b361e-bde8-11e6-8b45-b8b81dd5d080.

[2] The Constitutional Court is usually comprised of nine Justices, each with a six-year term. However, Park’s case had to be heard by eight Justices because the term of one of the Justices had ended on February 1, 2017.

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