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12/16/2024 | Press release | Distributed by Public on 12/16/2024 13:19
The Next Critical Step in South Korea’s Impeachment: The Constitutional Court
The Next Critical Step in South Korea's Impeachment: The Constitutional Court
Photo: JUNG YEON-JE/AFP via Getty Images
Critical Questions by Victor Cha and Ellen Kim
Published December 16, 2024
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South Korea's National Assembly impeached President Yoon Suk Yeol on December 14, 2024, with a vote of 204 to 85, which included 12 lawmakers from the ruling People's Power Party (PPP). Democratic Party leader Lee Jae-myung hailed the passage of Yoon's impeachment motion, declaring that "the people have proved that they are the owners of this country." By contrast, Yoon expressed his intent to challenge the motion, vowing that he "will never give up."
The next critical and decisive step is the deliberations by the Constitutional Court on whether the impeachment motion is constitutional. The court may have up to 180 days to render a judgment. In 2004, the Constitutional Court overturned the National Assembly's decision to impeach Roh Moo-hyun, sending the president back to office to assume his full powers. In 2017, the Court upheld the impeachment of Park Geun-hye, ousting her from office. The dismissal of Yoon could be confirmed, delayed, or even overturned depending on the composition of the judges on the court and the rules regarding its decision.
Q1: What is required of the Constitutional Court to decide on Yoon's impeachment case?
A1: The Constitutional Court requires at least six votes to uphold Yoon's impeachment. The Court consists of nine judges-three appointed by the president, three by the National Assembly, and three by the chief justice. Article 23, Paragraph 1 of the Constitutional Court Act stipulates the attendance of at least seven judges to hear a case, and Article 23, Paragraph 2 of the current Constitutional Court Act requires at least six votes in favor to sustain an impeachment motion. However, only six judges are on the bench right now due to delays in appointing replacements for the three vacant seats by the National Assembly. This situation leaves the court to decide whether it will proceed with Yoon's impeachment case with only six judges or wait until the vacant seats are filed. If a vote were held today, a single dissenting vote could derail the impeachment and reinstate Yoon in office.
Q2: Who are the six judges?
A2: The six judges currently serving are Moon Hyeong-bae, Lee Mi-seon, Kim Hyeong-du, Jeong Jeong-mi, Jeong Hyeong-sik, and Kim Bok-hyeong (See Table 1 below). Of these, two were directly appointed by former President Moon Jae-in, and the three were nominated by former Supreme Court Chief Justices Kim Myeong-soo and Cho Hee-dae. Jeong Hyeong-sik, who was directly appointed by President Yoon, will preside over the impeachment trial.
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Q3: What about the three vacancies?
A3: There are three proposed judges to fill the vacant seats on the Constitutional Court: one nominated by the ruling PPP and two by the Democratic Party. But these appointments have stalled in the National Assembly due to a lack of consensus between the parties. If the appointments proceed as proposed, it is believed that the court's political leanings could shift from four moderate/conservative and two progressive to five moderate/conservative and four progressive.
Two additional factors add complexity to this situation. First, the terms of two standing judges appointed by the progressive Moon government will expire in April 2025. Second, the final appointment of three new judges rests with the president, a power that, under the current circumstances, could be exercised by Acting President Han Duck-soo. Whether Han will move forward with these appointments remains to be seen.
Q4: What does this mean going forward?
A4: It remains uncertain whether the Constitutional Court will move quickly with its current composition to reach a decision. While it took 63 days for Roh Moo-hyun and 92 days for Park Geun-hye from the passage of their impeachment motions to the Court's verdict, Yoon seems determined to contest the case in court vigorously.
Moreover, any delay could invite further political maneuvering, as efforts to influence the court's composition in favor of one side or the other are likely to intensify. In addition to efforts to fill the three vacant seats, there may also be attempts to delay the proceedings until the terms of two judges appointed under the progressive government expire in April 2025. Such a delay would make it difficult to sustain the impeachment motion since a bench reduced to four judges would be unable to meet the six-vote threshold required to uphold the motion. Some argue that this buy-time strategy could be feasible if the court accepts the request to suspend the impeachment proceedings on the grounds of ongoing critical charges related to insurrection, as permitted under Article 51 of the Constitutional Court Act, which states: "Where a criminal proceeding is underway for the same cause as in the request for impeachment against the respondent, the Full Bench may suspend the adjudication proceedings." However, others argue that such suspension is unlikely, noting that the application of Article 51 is not mandatory, and the court previously declined a similar request to suspend proceedings during Park's impeachment trial, emphasizing the gravity of presidential impeachment.
Victor Cha is president of the Geopolitics and Foreign Policy Department and Korea Chair at the Center for Strategic and International Studies (CSIS) in Washington, D.C. Ellen Kim is a senior fellow with the Korea Chair at CSIS.
Critical Questions is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).
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