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Monday, 12 December 2016

President Park Geun-hye's Impeachment Special, Part IV: The Impeachment Proceedings in the Constitutional Court of Korea

The Constitutional Court of Korea (Hangul/Hanja/Romanization: 헌법재판소/憲法裁判所/Heonbeop Jaepanso) is an independent and specialised court in the Republic of Korea, whose primary role is the reviewing of constitutionality under the Constitution of the Republic of Korea. It also has administrative law functions such as ruling on competence disputes between governmental entities, giving final decisions on impeachments, and making judgements on the dissolution of political parties.

The Constitutional Court has exclusive jurisdiction over impeachment proceedings brought against certain high-ranking public officials. In general, impeachment motion is done by the National Assembly; in bicameral countries it is conducted by the upper house, and some countries have a separate Court of Impeachment, but the Korean Constitution endowed exclusive jurisdiction over impeachment to the Constitutional Court.

If the President of the Republic, the Prime Minister, members of the State Council or Ministers of Executive Ministries, Justices of the Constitutional Court, judges, members of the National Election Commission, Chairman or commissioners of the Board of Audit and Inspection, or other public officials designated by the law violate the Constitution or other laws in the performance of official duties, the National Assembly may pass a motion for impeachment. The impeachment prosecutor shall request adjudication by presenting to the Constitutional Court an authentic copy of the written resolution of the institution of impeachment. No person against whom a resolution of institution of impeachment is passed shall exercise his or her power until the Constitutional Court makes a decision thereon.

Impeachment adjudication proceeds with the hearings in the main building of the Constitutional Court at 15 Bukchon Avenue/Bukchonno, Jaedong 83-beonji, Seoul Jongno-gu. If the party is not present on the day of the hearings, the date must be reassigned. If the party fails to be present on the reassigned date, the hearing may proceed without the defaulting party. When a request for impeachment is upheld, the Constitutional Court shall pronounce a decision that the accused person be removed from public office. The decision of impeachment does not excuse the official from civil or criminal responsibility. An impeached official cannot become a public official within 5 years.

News about PGH's Impeachment in the Korea Times
Constitutional Court receives baton on impeachment, written by Kim Bo-eun
December 9th 2016, 1709 hours (KST +9)

The Constitutional Court received the baton on President Park Geun-hye's impeachment from the National Assembly after the motion against her was passed, Friday. Rep. Kweon Seong-dong of the Saenuri Party, the chief of the National Assembly Legislation and Judiciary Committee, who will defend the impeachment during the court hearings, submitted the resolution to the court.

The court then convened an emergency meeting of justices to discuss its hearing plan. It said the first may begin as early as the end of the month. The court named Judge Kang Il-won as the chief justice of the case. The court also requested the President to submit her written defense by Dec. 16, a preliminary step before hearings. The court is required to make a ruling within six months. But the decision may not come fast, because a number of factors could pose obstacles including an independent counsel investigation into the scandal surrounding her and her confidant Choi Soon-sil, which will be taking place at the same time.

Some observers say it may be difficult for the court to make a ruling before the investigation is concluded, as the allegations are yet to be confirmed as true. The court's previous ruling on the impeachment of former President Roh Moo-hyun was different in that the facts had already been established when the ruling took place. It took only 63 days. Others believe the special prosecutor's probe into the scandal will not affect the court's ruling because the justices will reach a conclusion independently.

The judges will examine whether the President violated the Constitution and laws by letting Choi, who does not hold a government post, meddle in state affairs, handing over classified state information to her, extorting money from conglomerates to benefit Choi, and not being on official duty on the day of the Sewol ferry disaster.

They will be able to examine related evidence. However, an obstacle in the process may be the law on the Constitutional Court which prevents it from requesting records of a case which is currently undergoing investigation or a trial. This will make it difficult for the impeachment ruling to take place before the independent counsel's 100-day investigation ends. The court may summon Park for the hearings, which she can refuse to attend.

Another obstacle may be the retirement of judges. At least seven justices of the nine-member panel are required to make a ruling, and at least six of them need to support the impeachment for it to be accepted. However, two members' terms will expire in January and March, respectively. The President holds the right to appoint the justices, but she has been suspended from duty. But it is not clear whether the prime minister, who will be the acting president, will be able to appoint new judges.

The scope of the acting president's authority is not clear. Among legal experts, there is a prevailing view that it is inappropriate for someone temporarily acting as the president to appoint justices who hold six-year terms.

If new members are not appointed soon enough, the ruling could be made with only seven members. Considering that the seven are mostly conservative, there is the possibility that more than one of them may oppose the impeachment and rule against it. Moreover, if one of the seven justices is unable to take part, the court's ruling will be indefinitely suspended.