The Impeachment Opinion, Annotated

Acting Chief Justice Lee Jeong-mi reads the opinion
(source)

Koreans did it. They impeached their corrupt and incompetent president, and the Constitutional Court sustained the impeachment to remove her from the office. It is a stunning triumph for Korea's democracy. The crowning moment of the triumph, of course, is when the Constitutional Court announced that Park Geun-hye was removed from the office. The moment was capped by a 20-minute reading of the court's opinion from the bench by Acting Chief Justice Lee Jeong-mi.

The court's opinion will not simply go down in Korean history, but in the history of world democracy as an exemplar of how an illiberal and anti-democratic president is to be taken down peacefully, in an orderly manner, pursuant to the rule of law. In other words: it deserves to be shared with the world immediately. The Constitutional Court usually provides an official translated version of its most important opinions, but the translation process usually takes months. So--I prepared a translated version of the court's opinion, with annotations for those who are not familiar with Korea's constitutional structure. 

Several caveats apply. First, and obviously, I did the translation myself and this translation is absolutely not official. Second, because I am not an attorney trained in Korean law, I may have gotten certain legal terms of art wrong. (However, because I am a lawyer and encounter Korean law frequently, my translation should be better than ones done by non-lawyers.) Third, the opinion translated below is the version that was read from the bench on March 10, 2017. Often, the court uses an abbreviated version of the opinion to read from the bench, and produce the full opinion later on its website. Because the full opinion is not yet available, I translated the bench opinion.

The original bench opinion is available here. Off we go, after the jump.

Got a question or a comment for the Korean? Email away at askakorean@gmail.com.

The translated opinion is produced below. Important passages are highlighted in blue, followed by TK's annotation in bold.

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We will begin delivering the court's decision on 2016 heon-na 1, the impeachment of President Park Geun-hye. Before giving the decision, we wish to remark on the progress of this case. In the past 90 days, we justices have given our all to resolve this case fairly and expeditiously. We believe that the Korean people have spent a time of much deliberation and agony, just as much as this panel. Since December 9 of last year when this case was filed, we justices met for deliberation for 60 days, or every day except weekends. There is no item in hearing the trial or the decision that did not undergo the discussion involving every one of the justices. 

[TK:  It is unusual for the Constitutional Court to preface its opinion in this manner. But clearly, the court gave this extra statement because it understood how important this case was.]

We have held three hearings for trial preparation, and 17 hearings for oral arguments. In the process, we carefully listened to the arguments by the impeachment committee and the counsels for each side, as well as 174 documents, 12 witnesses, five motions to compel production of documents and one request for admission from the petitioner, and 60 documents, 17 witnesses, six motions to compel production of documents and 68 request for admission from the respondent. We examined 48,000 pages of documents, and we also received 40 boxes of third party petitions.

[TK:  Remember that impeachment is a trial. The "petitioner" is the one who petitions for impeachment, i.e. the representatives from the National Assembly. The "respondent" is the one who responds to the petition, i.e. the president.]

As all Korean people know, the constitution is the foundation of all national institutions including the presidency, and the people are the source of the power that creates such a constitution. This court deeply recognizes this truth, and approaches this decision as if we are a party appearing before the court of history. This court wishes that this decision today, issued pursuant to the authority delegated by the people, will end the national division and discord, and serve as the fuel for progressing toward the road of reconciliation and healing. Further, the rule of the law is a value that all of us must uphold, and cannot be shaken.

[TK:  This ends the court's preliminary statement. Next, the court begins by considering the procedural propriety of the impeachment.]

We will now begin delivering the court's decision.

First, we consider whether there was an error in the procedure in which the impeachment resolution was passed. We consider the argument that the impeachment resolution did not specifically state the facts that form the basis for the impeachment.

Under the constitution, the facts forming the basis for impeachment refer to the facts establishing that a public official violated either constitution or the law in carrying his official duty. Here, violation of the law is not limited to violation of the criminal law. Further, impeachment leads to removal from public office, not a criminal liability. Therefore, the impeachment resolution only needs to provide enough facts for the respondent to exercise her defensive right and discern the issues for the trial. Although there are arguably parts in the impeachment resolution at issue in which the constitutional violations are not clearly categorized, it is sufficient to specify the bases for impeachment when they are read together with parts alleging statutory violations.

[TK:  This was perhaps Park Geun-hye's strongest argument, but the court rejected it. The attorneys for Park argued that the impeachment was procedurally defective by pointing to criminal procedure. Because the procedure for an impeachment trial is not spelled out in detail (since an impeachment trial is so rare!), there was a decent chance that the Constitutional Court might have fashioned a stricter procedural requirement than the one actually followed by the National Assembly. Because the court rejected this argument, Park Geun-hye is already halfway toward defeat at this point.]

Next, we address the argument that when the impeachment resolution was submitted for a vote, there had been no investigation from the National Assembly’s Legislation & Judiciary Committee, and only the indictment [from the Supreme Prosecutor’s Office] and several newspaper articles were offered as evidence. Under the principle of separation of powers, we must respect the right of the National Assembly to freely establish its own process of handling its affairs. Even under the National Assembly Act, it is the National Assembly’s discretion whether to conduct an investigation when an impeachment resolution is proposed. Thus, voting on the resolution violated neither the constitution nor any statute.

Next, we consider the argument that the impeachment resolution did not have a floor debate. While it is true that there was no floor debate prior to the voting, there is no rule under the National Assembly Act that there should be such a debate. Although an Assembly Member may notify to the chair of the Assembly his intent to either support or oppose the resolution and open a debate, there were no Assembly Member who expressed an intent for a debate, nor is it the case that the chair overruled any expressed desire for a debate.

We address the argument that it was contrary to the law for the National Assembly to hold a single vote for several bases of impeachment. In case there are multiple bases for impeachment, whether to have a single vote for the several bases or to have individual votes for each basis is entirely up to the Assembly Member who proposed the resolution. There is no written rule on voting otherwise.

[TK:  The court shut down several arguments by Park Geun-hye's attorneys that, basically, the National Assembly did not follow proper procedure to pass the impeachment resolution. This was a weak argument that had no chance.]

We review the argument that a decision by eight justices, forming the bench ordinarily made up of nine, violates the right of fair trial. Under the constitution, the Constitutional Court is made up of nine justices. But realistically, it is inevitable for some of the justices to become unable to participate in a decision from time to time, for reasons such as the justice’s business travel, illness, or the gap between one justice’s retirement and the appointment of his successor. The constitution and the law provide for rules in such cases. An impeachment decision requires six votes in favor, and hearing of the case requires seven or more justices in attendance. An argument that calls for waiting until all nine justices to attend the trial, as a practical matter, is an argument that there should be no trial at all, in a situation like this one in which there is a controversy as to whether the acting president may nominate the Chief Justice of the Constitutional Court. This results in prolonging the constitutional crisis occasioned by the suspension of the president’s authority pursuant to the impeachment resolution. As long as there is no violation of the constitution or the law in hearing and deciding the case with eight justices, the Constitutional Court cannot allow the constitutional crisis to continue in neglect.

[TK:  The Constitutional Court has nine justices who serve six year terms, and the term for Chief Justice Park Han-cheol was over in the middle of the impeachment trial--which is why the Acting Chief Justice Lee Jeong-mi delivered the opinion. But the argument that an eight-justice bench was not supposed to hold the trial was a frivolous one, since there is a clear rule that establishes seven justices as a quorum.]

Therefore, there is no violation of the constitution or the laws in the National Assembly’s vote approving the impeachment resolution, nor is there any other error in the requirements of the law.

[TK:  Thus concludes the court's discussion of the procedural issues for the impeachment trial. The court found all proper procedures were followed. Next, the court discusses the merits of the trial.]

Now, we review the bases for impeachment. We examine each basis in turn, to consider whether the respondent violated the constitution or the law as she carried out her official duties.

[TK:  The impeachment resolution named five violations of constitution and four violations of statute. The court grouped those violations into four groups.]

We consider the claim that the respondent abused her authority to appoint public official, violating the essence of the career civil service system. Based on the respondent’s direction, Bureau Chief Roh [Tae-gang] and Section Chief Jin [Jae-su] of the Ministry of Culture, Sports and Tourism (MCST) received adverse treatment in their promotion, which lead Roh to retire. Former Minister of MCST Yoo Jin-ryong was also relieved of his duty. We recognize the fact that Kim Gi-chun, chief of staff to the president, ordered the Vice Minister of MCST to receive resignation letters from six Class-1 public officials, and relieved three of the officials of their duties. However, the sum of the evidence appearing in this case is insufficient to establish that the respondent punished Bureau Chief Roh and Section Chief Jin because they were interfering with Choi Seo-won’s pursuit of private gains. Further, the reasons for Minister Yoo’s relief, and Kim Gi-chun’s receipt of six resignation letters, likewise remain unclear.

[TK:  First argument for impeachment was that Park Geun-hye abused her authority to appoint public officials. This argument lost. You can see here that the court is requiring a very high evidentiary standard; there was a great deal of circumstantial evidence, but the court rejected them as insufficient. This is a wise choice, because an impeachment is not something to be achieved too easily.]

We consider the claim that the respondent infringed upon the freedom of press. The petitioner argues that the respondent applied pressure to terminate the head of Segye Ilbo. The court recognizes the fact that Segye Ilbo reported on the Jeong Yun-hoe Report composed by Office of the Chief of Civil Affairs of the Blue House; that the respondent, in response to Segye Ilbo’s coverage, criticized the document leak, stating that leaking Blue House documents is an act of upending the national order and that the Supreme Prosecutor’s Office must investigate thoroughly. However, the sum of all evidence appearing in this case does not clearly establish specifically who applied pressure to Segye Ilbo, and there is no evidence that the respondent was involved.

[TK:  Second argument loses also. This argument had less evidence than the first one, so not very surprising that it met the same result.]

Next, we consider the alleged violation of the duty to protect life and the duty to exercise due diligence as a public official. On April 16, 2014, the Sewol ferry sank, tragically claiming 304 lives. At the time, the respondent remained at her residence. The constitution provides that the nation recognizes the fundamental and inviolable human rights belonging to each individual, and has the duty to guarantee such rights. As the sinking of the Sewol was a tragedy that greatly shocked and pained all Koreans, no word would be enough to console the victims. The respondent has the duty to exercise her authority and carry out the duties of her office in order for the nation to faithfully execute its duty to protect the people’s lives and bodily safety. However, even in the case of a disaster in which people’s lives are threatened, it is difficult to find that a specific and particular duty to act, such as the respondent’s personal participation in the rescue effort, arises. In addition, the respondent has the duty to exercise her due diligence in carrying out the duties of her office as the president. But because the concept of due diligence is relative and abstract, it is difficult to impeach based on a violation of such an abstract duty as duly diligent carriage of duties. Previously, the Constitutional Court already held that, because the president’s duty to exercise due diligence in carrying out his duty cannot be accomplished as a matter of rule, it cannot be subject to a jurisprudential judgment, and that the existence of due diligence in carrying out the presidential duties in times of political incompetence or errors in policy decisions, by themselves, cannot serve as a basis for impeachment. Although the Sewol disaster could not be more terrible, whether the respondent diligently carried out her duties on the day of the tragedy is not a subject for determination in an impeachment trial.

[TK:  The third argument was about Park Geun-hye's failure to respond properly to the Sewol ferry disaster. Although this argument had a great deal of emotional resonance, as a legal matter it was a non-starter. As the court explains in the opinion, the Constitutional Court already established in a previous case (namely, the impeachment trial of President Roh Moo-hyun in 2004) that incompetence is not an impeachable offense.

At this point, the pro-impeachment arguments went 0-for-3. Deep breaths were held everywhere in Korea. The fourth argument was the true meat of the case: Park Geun-hye's privitization of power for the benefit of Choi Soon-sil.]

Now, we review the issue of the respondent’s permitting Choi Seo-won to interfere with government affairs and abuse of authority. [TK:  Because Choi Soon-sil legally changed her name to Choi Seo-won in 2014, the court refers to her by her legal name.] Staff Secretary Jeong Ho-seong generally delivered to the respondent the documents to be reported to the president. From January 2013 to April 2016, Jeong Ho-seong delivered to Choi Seo-won documents containing government confidentiality, such as reports on appointments, reports for cabinet meetings, itinerary for the presidential travels abroad, preparatory documents for meeting with the U.S. Secretary of State, and so on. Choi Seo-won reviewed the documents and intervened in governmental activities by giving her opinion, editing the contents of the documents or adjusting the respondent’s schedule. Choi Seo-won also recommended candidates for public offices, some of whom assisted in Choi’s pursuit of wealth. The respondent received a request from Choi Seo-won to form an inroad for KD Corporation, an auto parts manufacturer, to supply for a major corporation. The respondent had An Jong-beom to request the transaction to Hyundai Motor Group. The respondent directed An Jong-beom to establish foundations related to culture and sports, leading to the establishment of Mir Foundation and K-Sports Foundation, funded by major corporations who provided KRW 48.6 billion and KRW 28.8 billion respectively. But it was the respondent and Choi Seo-won who made all decisions as to the operation of the two foundations, including hiring and firing officers, implementing projects, spending its budget and making business decisions; the corporations that provided the funds had no say. Shortly before Mir Foundation was established, Choi Seo-won founded and operated Playground, an advertisement company. Choi dominated Mir through its executives that she recommended, and profited by having them enter into a service contract with her own company Playground. Further, pursuant to Choi Seo-won’s request, the respondent, through An Jong-beom, demanded Korea Telecom (KT) to hire two particular individuals to work in advertisement. Thereafter, Playground was selected as KT’s advertisement agency, winning advertisement contracts worth KRW 6.8 billion. In addition, An Jong-beom provided introductory materials for Playground to Hyundai Motors Group under the respondent’s direction, and Hyundai Motors and Kia Motors awarded a KRW 900 million contract for Playground, a company with very little history. Meanwhile, Choi Seo-won established The Blue K a day before K-Sports’ foundation. Choi hired Roh Seung-il and Park Heon-yeong as employees for K-Sports, ordering them to enter into a service contract with The Blue K. The respondent, through An Jong-beom, had Grand Korea Leisure and POSCO to found sports teams, whose players would be managed by The Blue K as their agent. Through Vice Minister Kim Jong of the MCST, Choi Seo-won obtained an internal document for MCST regarding the reform plans for local sports clubs, and devised a plan for K-Sports to intervene for the purpose of profiting The Blue K. Also, the respondent had a one-on-one meeting with the chairman of Lotte Group and demanded money to build sports facility in Hanam-si for strategic promotion of promising athletes; accordingly, Lotte sent KRW 7 billion to K-Sports.

[TK:  This long recitation of facts regarding Park Geun-hye's involvement in Choi Soon-sil's corruption is a sign that the court is about to dig deep into this issue. To be removed from office, Park Geun-hye must be found to have seriously violated the constitution and the law.]

Next, we consider whether such actions by the respondents violate the constitution and the law. The constitution declares the duty of the public official to actualize the public good by designating public officials as “servants for all people.” Such duties are specified through the National Public Officials Act and Public Official Ethics Act. The action by the respondent is an abuse of the president’s stature and authority for Choi Seo-won’s profit; it cannot be considered a fair administration of the duties of the office, and violates the constitution, the National Public Officials Act and Public Official Ethics Act. Further, the respondent’s action of directly and indirectly assisting Choi Seo-won’s profiteering violated the corporations’ right for property and their freedom to operate their business. Also, the leak of numerous confidential documents to Choi Seo-won based on the respondent’s direction or neglect violates the duty of confidentiality under the National Public Officials Act.

[TK:  A big setup by the court, as it specifies exactly what law Park Geun-hye violated. But are those violations serious enough? Here it comes...]

We consider whether the respondent’s violations of the law are sufficiently serious for removal. The president must not only exercise her authority pursuant to the constitution and the laws, but also transparently disclose her carriage of duties to be assessed by the people. But the respondent tightly hid Choi Seo-won’s interference with governmental policies, denied any interference each time when questions arose, and denounced the fact that questions were raised. Accordingly, constitutional institutions such as the National Assembly could not check her actions, nor could the press monitor her behavior. Further, the respondent intervened and assisted Choi Seo-won’s private profiteering by establishing Mir and K-Sports Foundations and assisting Playground, The Blue K and KD Corporation. The respondent’s violation of the constitution and the law occurred consistently throughout her administration, and despite the criticism from the National Assembly and the press, the respondent hid the facts and punished the dissenters. Consequentially, those who followed the respondent’s directions, including An Jong-beom, Kim Jong, Jeong Ho-seong, were arrested and indicted for corruption. Such violations of the constitution and the law by the respondent damaged the principle of representative democracy and the rule of law. Although the respondent in her public statements promised to cooperate fully in ascertaining the truth, she failed to cooperate with the investigation by the Supreme Prosecutor’s Office and the Special Prosecutor, and refused to allow the Blue House to be searched. In reviewing the series of remarks by the respondent in relation to the bases for impeachment, we cannot find the resolve to uphold the constitution such that the violations of the law will not be repeated.

Therefore, as the respondent’s violations of the constitution and the law betrayed the people’s trust, they are serious violations of the law that cannot be condoned from the perspective of upholding the constitution. As the respondent’s violation of the law significantly and negatively impacts and influences the constitutional order, the gains of upholding the constitution by removing the respondent from her office is overwhelmingly great.

Accordingly, by unanimous opinion of all justices, the court hereby issues the order:

The respondent, President Park Geun-hye, is removed from the office.

[TK:  BOOM. There it goes, in one-two-three step: (1) Park Geun-hye used her power to help Choi Soon-sil's profiteering; (2) such use of power violates the constitution and the law, and; (3) the violations were serious enough to merit removal from the office. 

Overall, the court's opinion is principled and disciplined. It painstakingly established in the beginning that all procedures were proper. The opinion also set up a high evidentiary standard and did not budge from the standard. The court aggressively pruned off the weaker grounds for impeachment, and focused on the strongest one: Park Geun-hye's assistance of Choi Soon-sil's profiteering. Note that the decision was not even about the claim that Park herself profited from bribery; rather, it is that Park abused her power to help Choi Soon-sil profit. This much is factually irrefutable, and inarguably in violation of the constitution and the law. It is a sound judicial practice for a court to make a major decision based on the strongest and narrowest grounds, so that the legitimacy of the decision would be beyond reproach.

And just like that, Park Geun-hye was no longer the president of the Republic of Korea. A historic achievement.]

Got a question or a comment for the Korean? Email away at askakorean@gmail.com.