[Newsmaker] Is Constitutional Court stacked in Park's favor?

By Yeo Jun-suk

Public sentiment, imminent end of two judges’ term expected to affect trial

  • Published : Dec 11, 2016 - 17:35
  • Updated : Dec 11, 2016 - 17:35

Now that the parliament has voted to impeach Park Geun-hye, the fate of her presidency is left to one unique entity that is rarely in the public eye: the Constitutional Court.

A tough legal battle looms, as the president, embroiled in a corruption and nepotism scandal involving her secret confidante Choi Soon-sil, is determined to defend her job and name.

Legal issues aside, observers say the court itself is stacked against forces that want Park gone as soon as possible. Two factors come into play: The ideological makeup of the justices and the expected departure early next year of two of them.

In a survey of six Constitutional law experts, conducted by The Korea Herald last month, three said the court was likely to approve Park’s impeachment. Two refrained from making predictions, while one said the impeachment could be overturned by the court due to the two factors.
Chief Justice Park Han-chul (left) and Justice Kang Il-won enter the Constitutional Court in Seoul on Sunday. (Yonhap)
Conservative judges

Park’s ultimate removal from office requires consent from at least six of the nine judges of the Constitutional Court.

Of the nine, seven are considered to be right-leaning and pro-government. They are those appointed by President Park, her predecessor Lee Myung-bak, the conservative governing party, or the chief justice of Supreme Court, who was named by Park or Lee.

Such a composition -- different from the equivalent system in other democracies like Germany where lawmakers elect all the judges -- presents an uphill battle to forces campaigning to unseat Park.

On top of that, the court’s independence and political neutrality have been thrown into question recently.

A memo left behind by a now deceased presidential aide claimed that Kim Ki-choon, Park’s chief of staff until last year, gave a directive to the chief justice of the Constitutional Court in 2014, ahead of the court’s ruling to dissolve a small leftist party accused of supporting North Korea. Kim has denied any interference with the judiciary branch.

The Constitutional Court has taken a conservative stance on other divisive issues. In 2012, the judges ruled that punishment of medical professionals who performed an abortion was constitutional. More recently in 2015, it upheld a lower court’s decision to strip a union of some 60,000 liberal-minded teachers of its legal status, saying it has eight members who are no longer teachers.

Because of this, even opposition lawmakers who wanted Park gone were at first reluctant to campaign for her impeachment.

“I’m not fully confident that the court will approve the impeachment,” said opposition People’s Party Floor Leader Rep. Park Jie-won. “If the conservative judges reject the motion, it would be like giving Park immunity.”

The Constitution states that the approval of the parliamentary impeachment of the president requires consent from six, not two-thirds, of the nine judges.

This is important because two of the justices are slated to retire early next year and are unlikely to be promptly replaced, with the president standing trial and suspended from work. There is a legal dispute as to whether acting President Hwang Kyo-ahn can appoint new judges.

How likely is Park’s impeachment?

The aforementioned factors, however, are not the core issue.

The real question is whether the allegations listed in the parliamentary impeachment bill warrant Park’s removal.

This is why some experts predict the Constitutional Court may deviate from its previous conservative stance in the country’s second presidential impeachment trial.

They say Park’s violations of the Constitution and laws are serious and grave and that the majority of the public want her gone, pressuring the judges to decide against the president.

The impeachment bill, drafted by opposition parties, says that Park violated her Constitutional duties to preserve democratic values by allowing her confidante Choi Soon-sil to meddle in state affairs.

Park’s is also accused of committing abuse of power, bribery and extortion when she colluded with Choi and others to force private businesses to make donations to the Mir and K-Sports foundations run by Choi and give contracts to certain companies.

“Park’s scandal is not about the political ideologies of conservatives and liberals. It is about the very basic ethics of a president and the core democratic values of the nation,” said Shin Pyung, a professor at Kyungpook National University School of Law and chairman of the Korean Constitutional Law Association.

Constitutional scholars agreed that only if the court finds those allegations substantial and convincing, then they would find it warrants a dismissal.

In a previous presidential impeachment trial in 2004 against President Roh Moo-hyun, the Court reinstated the liberal president. It said that the president had indeed violated the election law, but it was not a grave enough offense to remove him.

“Compared to other public officials subject to impeachment, the effect of impeaching the president is far more serious. Thus, when trying to impeach the president, there needs to be some grave violations of the Constitution or law that can override the expected negative effect,” the court has said.

The court gave examples of what constitutes as “grave offenses.” Among them are abusing presidential authority to engage in bribery, undermining the country’s core national interests, infringing upon people’s basic rights and manipulating election results.

Unlike Roh, who admitted to a breach of political neutrality before the court reviewed his case, Park denies any wrongdoing.

Since the nepotism scandal erupted in late October, Park has apologized three times but rejected the notion that it was her who committed corruption. Her only fault was dropping her guard down with longtime friend Choi Soon-sil, who used her closeness to Park to interfere in state affairs and win business favors.

Due to their contrasting attitudes, the duration of the trial could differ, some experts warn.

In Roh’s case, the verdict was out on the 63rd day after the impeachment bill was passed. This time, the court’s deliberation could take longer. By law, the court is required to deliver a verdict within 180 days.

Saenuri Party floor leader Rep. Chung Jin-suk said that the 180-day-limit could be compromised, depending on case. The court could suspend its deliberation process to see what lower courts decide on the criminal cases brought against Park’s allies and foes involved in the scandal. Prosecutors named Park an accomplice to them, but couldn’t press charges against her due to her non-indictment privilege as the sitting president.

Some experts say the court, if it wants, can speed up the process.

“Regardless of how pending criminal trials related to this scandal end, the Constitutional Court can finish their own proceedings independently,” said Lim Ji-bong, a constitutional law professor at Sogang University Law School.

By Yeo Jun-suk (