I’m going to go a bit off track in this post, which is not about Chinese law at all. Instead, it contains the answer to a question I’ve wondered about for a while but never seen even asked, let alone answered, in all the relevant commentary.
Here’s the issue: South Korean president Yoon Suk Yeol has been impeached by the legislature over his declaration of martial law. To be removed from office, however, requires a decision by Korea’s Constitutional Court. The question that naturally occurs to a lawyer, but that I never saw asked or answered in the commentary, is: what criteria is the court supposed to use in making this decision? Presumably it’s not the subjective view of the judges on whether they like Yoon but is at least supposed to be something different, more objective, and more law-like.
My instinct was correct. I emailed a Korean colleague who’s a distinguished legal scholar and got back this response, which I’ll quote in full below with no further comment.
Criteria for judging the impeachment of the president: “seriousness of violation of the Constitution and laws” and “will to protect the Constitution”
The impeachment bill against President Yoon Seok-yeol passed the National Assembly on the 14th. There have been two previous trials of impeachment of a president in the history of the Constitution. The Constitutional Court denied the impeachment of President Roh Moo-hyun in 2004 and confirmed the impeachment of President Park Geun-hye in 2017. The criteria for judgment were largely two-fold: “the seriousness of violations of the Constitution and the law” and “the will to protect the Constitution.”
- The Constitution only stipulates that the president can be impeached if he or she violates the Constitution or the law in the performance of his or her duties.
Article 65, Paragraph 1 of the Constitution stipulates that “the National Assembly may vote to impeach the president if he or she violates the Constitution or the law in the performance of his or her duties.” In addition, Article 113(1) of the Constitution stipulates that “when the Constitutional Court makes a decision on impeachment, the approval of six or more judges is required.”
There are no other provisions on the specific reasons why the president can be dismissed by the Constitutional Court’s decision of impeachment. Previously, the Constitutional Court stated specific criteria in the cases of the dismissal of the impeachment of President Roh Moo-hyun and the impeachment of President Park Geun-hye. The Constitutional Court ruled that impeachment is not possible if the violation of the Constitution and laws is minor, but is possible if it is serious. The Constitutional Court also ruled that impeachment is possible if there is the president has no will to protect the Constitution, but not if there is a will.
- The Constitutional Court judges based on the criteria of “serious violation” and “will to protect the Constitution”
In the 2017 impeachment of President Park Geun-hye, the Constitutional Court made a unanimous decision to impeach her. At the time, the Constitutional Court said, “Park’s act of allowing Choi Soon-sil’s intervention in state affairs and helping her pursue private interests through the Mir and K-Sports Foundation undermined the principle of representative democracy and the spirit of the rule of law,” and “It is a serious criminal act that cannot be tolerated from the perspective of defending the Constitution as it betrays the trust of the people.” If the law has been so seriously violated as to warrant the people withdrawing their confidence from the president, he should be impeached and removed from office.
The Constitutional Court further pointed out, “Park has thoroughly hidden the fact that Choi Sun-sil has interfered in state affairs and has rather criticized the allegations whenever they are raised,” and “According to the series of remarks, there is no sign of a willi to protect the Constitution to prevent violations of the law from being repeated.”
The Constitutional Court made a similar decision in the 2004 impeachment of President Roh Moo-hyun. The Constitutional Court ruled that although President Roh violated the neutrality obligation of public officials under the election law, “it is not a serious enough reason to dismiss him (by impeachment).” At the time, the Constitutional Court said that a “serious reason” is “when a president betrays the trust of the people and loses the qualifications to conduct the affairs of state.” It also ruled that a president cannot be impeached and removed from office unless the people’s faith that the president will uphold the Constitution and the law and faithfully carry out state affairs is destroyed.
- The opposition: “The state of emergency is a serious violation of the Constitution and illegal… It cannot be tolerated from the perspective of protecting the Constitution.”
The six opposition parties, including the Democratic Party, the Party for National Innovation, the Innovation Party, the Progressive Party, the Basic Income Party, and the Social Democratic Party, submitted the second impeachment bill against President Yoon to the National Assembly on the 12th, which contained the same content as the standards for impeachment by the Constitutional Court.
The opposition party claimed in the impeachment claim that “President Yoon has committed serious unconstitutional and illegal acts in the performance of his duties.” The opposition party said, “(President Yoon) betrayed the trust of the people and abused the martial law declaration power granted by the Constitution to mobilize the government, the military, and the police to commit armed insurrection for the purpose of disturbing the national constitution, thereby abandoning the duty to protect the Constitution and committing serious unconstitutional and illegal acts in the execution of his duties.”
“The December 3 declaration of emergency martial law did not meet the substantive and procedural requirements of the Constitution and the martial law act,” they said. “As such, President Yoon violated the Constitution and the law, and the extent of the violation is very serious.” They went on to say, ”President Yoon’s acts of insurrection and abuse of the right to declare emergency martial law are serious violations of the Constitution and the law that have endangered the existence of the state, and thus justify his removal.”
The opposition party also said, “The benefit of defending the constitution by removing President Yoon from office in a short period of time outweighs the national loss that comes with removing the president,” and “President Yoon’s unconstitutionality and illegality are so serious that it is unacceptable to maintain his presidency from the perspective of defending the constitution, and his betrayal of the people’s trust has reached the point where he has lost the qualifications to govern the country.”