South Korea Waits for Constitutional Court’s Decision on Presidential Impeachment Case


Protestors demand Park’s resignation with white/blue signs reading “Impeach Park Geun-hye” and white fliers reading “Step down, Park Geun-hye” in Chunggye Plaza, Seoul. Courtesy Teddy Cross/Flickr.

Park Geun-hye, South Korea’s first female president, faces impeachment four years after her watershed election. The Constitutional Court is grappling with the second impeachment trial in South Korean history, and the prosecution is striving to overcome deeply rooted networks of corruption between the government and large businesses to prosecute Park and her associates.

The impeachment motion, passed by the South Korean National Assembly on December 9, 2016, was largely encouraged and forced by popular sentiment, demonstrated through mass protests of Park’s relationship with confidante Choi Sun-sil. (Choi, who was at the center of a political scandal involving Park, has been charged with extortion and fraud.) Allegations involved in the scandal include collusion, solicitation of bribery from conglomerates, and cronyism. When allegations about Park’s association with Choi were made last fall, large numbers of South Koreans demonstrated their desire to have Choi prosecuted and Park impeached in weekly mass protests which sometimes involved millions of people. The impeachment motion charges Park with violation of the constitution and of criminal law, or abuse of power, bribery, infringement of press freedom, and negligence with respect to the 2014 Sewol ferry disaster, which resulted in 304 deaths.

South Koreans’ indignation has been fueled by allegations about Park’s violation of numerous laws. Park allowed Choi to meddle in government matters and decisions, violating the law prohibiting sharing of confidential presidential documents with a person without a security clearance. A number of Chaebols’ involvement in the presidential scandal incited public anger toward the deeply entrenched connection between the government and chaebol. A court’s rejection of the prosecution’s request to arrest the heir of the Samsung group, Lee Jae-Yong, for suspected bribery is lamented as another instance of such a corruption. A former media executive’s claim made following the outbreak of the scandal that the government carried illegal surveillance of the Supreme Court Chief Justice, if true, would mean that Park’s administration violated the constitutional principle of separation of powers.  

The Constitutional Court is now determining whether the National Assembly afforded Park due process and whether there exist sufficient grounds for impeachment. The Court will decide whether Park is guilty of the crimes that the National Assembly charges her with and whether such guilt is serious enough to warrant impeachment. Several South Korean legal scholars have speculated that the Court’s standard of review will be lower than the “beyond a reasonable doubt” standard employed in criminal trials. South Korea’s law does not explicitly prescribe the standard of review for impeachment trials, and criminal procedure is to be appliedat a level that does not clash with the nature of the constitutional trial.” Other legal scholars, contesting the low threshold for impeachment articulated by their peers, believe that the prosecution needs to establish clear evidence of a grave violation of the constitution. The defense counsels have indeed argued that the allegations against Park lack evidence and legal basis. Some commentators criticize the National Assembly for having proceeded with the trial before collecting sufficient evidence to impeach Park. Since Park has been denying her involvement in or knowledge of any wrongdoings, the prosecution’s ability to secure more concrete evidence of Park’s involvement in corruption, collusion, and bribery and evidence of her negligence regarding the Sewol ferry disaster is likely to have a crucial impact on the Constitutional Court’s decision. However, while the prosecution is having a harder time making a case for bribery involving chaebol, the Culture Minister Cho Yoon-sun’s recent acknowledgement of having blacklisted artists who are progressive and unfriendly to the government could shed a new light on the impeachment trial. If the prosecution can further corroborate Park’s involvement in the blacklisting, it will be able to strengthen its case against Park because such an act is an infringement on the constitutional freedom of thought and expression.    

South Korea has only one precedent for the impeachment trial: the 2004 trial of former President Roh Moo-hyun, in which the Court held that his violation of the election law was relatively minor and dismissed the National Assembly’s motion to impeach him. In the decision, the Court laid out five possible grounds for impeachment, at least three of which legal scholars expected the prosecution to argue for in Park’s trial:  acts of corruption, harming the national interest, and violating the people’s basic rights. The lack of other precedents and clear standards in the constitution could mean either that the justices feel permitted to exercise substantial leeway in interpreting the Constitution or, to the contrary, that they hew narrowly to the 2004 judgment.

South Korean constitutional law requires that at least six out of nine Constitutional Court justices vote in favor of an impeachment to confirm it, but there is a complication deriving from the fact that the terms of two justices will end, in February and March respectively. The vacancies will not be filled in before the Court’s decision because the president appoints justices of the Constitutional Court, but Park has been and will remain suspended from the presidential office until the decision is made, and thus cannot exercise her power to appoint Constitutional Court justices in the meantime. Moreover, vacancies on the bench are legally counted as votes against impeachment.

Park’s victory in the 2012 election seemed to promise new possibilities for South Korean female leaders and admirers of her father and former authoritarian president, Park Chung-hee. Now, her presidency serves as an example of how corrupt the government can be and how fierce and determined the South Korean citizenry can be to fight against corruption. Her presidency is on the brink of a disgraceful ending, and the expectations have shattered, but nonetheless her impeachment trial carries significant legal implications for South Korean constitutional jurisprudence as well as political, social, and economic implications.

Lisa Cha is a second-year J.D. student at Columbia Law School and a staffer of the Columbia Journal of Transnational Law. She grew up in South Korea and holds a B.A. in Political Science and Economics from Northwestern University.