The Constitutional Court's rejection of Prime Minister Han Duck-soo's impeachment on Monday presents much to consider. That kind of deliberation on whether to confirm the impeachment of an acting president was unprecedented, and it is also linked to suspended President Yoon Suk Yeol’s impeachment trial. Some guidelines have been clearly established on the legal status of acting presidents, while others provide a glimpse into the Constitutional Court's perception of the case of Yoon. There is also something to consider about Han's moves since he has returned to his original post.
It is worth remembering that the reasoning behind the dismissal of the prime minister's impeachment did not confirm that he was innocent. The most crucial reason Han was impeached by the National Assembly in December last year was that he did not appoint the three nominees for Constitutional Court justice recommended by the National Assembly. The court confirmed that he violated the Constitution, but the majority decision was that the violation was not severe enough for the prime minister to be removed.
When the prime minister is acting president, it has been confirmed which position takes precedence -- the president's or the prime minister's -- when the latter acts as president. Some argued that the National Assembly needed more than two-thirds of its members to impeach an acting president because he or she had assumed the power of the president, but the Constitutional Court judged that the simple majority required to impeach the prime minister was the appropriate standard. It pointed out that the level of democratic legitimacy is a distinct factor, as the president was elected by the people, but the prime minister was not. It also clarified that the impeachment trial was over Han's position as prime minister, saying that his new position of acting president had not been created until Yoon was voted impeached.
Regarding Yoon's impeachment trial, the ruling party argued that the case itself should be completely dismissed because the National Assembly withdrew part of the insurrection charge, which the Constitutional Court did not comment on while dealing with Han's case. As a result, we might think that the court showed that there is no scenario in which Yoon's impeachment would be completely thrown out.
The Constitutional Court also confirmed that there was no evidence that Han actively participated in Yoon's emergency martial law declaration plot. An analysis of the Constitutional Court's judgment implies that if he had actively participated in Yoon's martial law plan, such as by proposing an official Cabinet meeting, he could be cited for impeachment. Thus, it can be interpreted that martial law is illegal and unconstitutional, because the concept of martial law is judged highly negatively.
One reason for Han's impeachment is that he intentionally delayed the recommendation of candidates for a special counsel in connection with the “independent counsel bill on insurrection” passed under the Permanent Special Counsel Act. The Constitutional Court agreed that it can be delayed if there are justifiable reasons.
Constitutional Court judgments must be respected, but there are factors that are difficult to understand. For example, suppose a president can ignore the Constitutional Court justices nominated by the National Assembly without appointing them. In that case, the side effects of undermining the principle of separation of powers, especially the opportunity to check the president's massive power, would be severe.
It is desirable for the prime minister actively to dissuade the president from conducting an unconstitutional or illegal martial law decree amounting to insurrection. However, we saw that the prime minister did not do so, remained passive and received no punishment. It is not surprising that high-ranking officials followed suit. It is an act of betrayal of the people, and there is no punishment for them. Who would trust them to run the state?
The Constitutional Court also ruled that there is a gap in the democratic legitimacy of the president elected by the people and the prime minister, to whom his powers were entrusted. If so, when the prime minister serves as acting president, he or she should abstain from actively exercising authority. Using more than three days to review the recommendation of candidates for the permanent special counsel violates the guidelines that this duty must be handled without delay, and doing so can be seen as an active veto.
There are some regrets about Han’s moves since his return. It is reported that he held a national security meeting and ordered the entire military to beef up its alert status. As the acting president has been changed, it is necessary to reveal who the commander-in-chief is, both internally and externally. However, whether there was a need to beef up the entire military's posture is questionable. What could the Army do to strengthen further, and why should it? Considering the current situation, it would have been better to instruct the entire military to continue its everyday mission of protecting the lives and property of the people without wavering.
It is also unfortunate to see reports that the White House commented that it is focused on its commitment to cooperate with Prime Minister Han Duck-soo. Han serves as acting president according to the Constitution and laws of the Republic of Korea. The White House is not an authority that needs to endorse Han's legitimacy. Judging from the attitude of the prime minister's office, it seems that the White House has elevated Han's status as an acting president by expressing its position. It is a typical kowtow approach. If Han was considering the pride of the Korean people, it would have been appropriate for the White House's message to be provided to reporters with lighter weight.
It should be noted that acting president is a temporary position created when the president cannot exercise his or her authority. In South Korea, the president has high status and enormous authority, and the extent of presidential power is incomparable to that of the prime minister, the administration's second-in-command. It would not be very pleasant if people were to speak about the acting president enjoying his time playing the role of president.
Wang Son-taek
Wang Son-taek is an adjunct professor at Sogang University. He is a former diplomatic correspondent at YTN and a former research associate at Yeosijae. The views expressed here are the writer’s own. — Ed.
