The Volokh Conspiracy
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Constitutional Questions in South Korea (Updated)
The opposition is trying to impeach the Acting President for insurrection, who claims he lacks the power to make appointment to constitutional court, which may not have enough members to remove the impeached President.
I do not know the first thing about the Constitution of South Korea. But this report from the New York Times reads like an exam fact pattern.
First, the acting President refuses to make appointments to the constitutional court. And the opposition party seeks to impeach the acting president for failing to make those appointments.
Opposition lawmakers in South Korea were planning to vote on Friday to impeach the prime minister and acting president, Han Duck-soo, the latest turn in a political crisis that has created a power vacuum in the country.
Mr. Han had been made acting president just earlier this month, after the National Assembly impeached and suspended President Yoon Suk Yeol on Dec. 14 for putting the country under military rule for the first time in 45 years.
Now, barely two weeks into Mr. Han's tenure as acting president, the main opposition party has filed a motion for his impeachment as well. The move came after Mr. Han refused on Thursday to appoint three judges to fill vacancies in the Constitutional Court, the body that will be deciding whether to reinstate or remove Mr. Yoon.
This is almost like the Merrick Garland scenario in reverse. But instead of the Senate refusing to give Garland a hearing, the Acting President is refusing to make the appointment.
Second, does the Acting President have the duty to fill the vacancies? At least in our system, the President is under no obligation at all to make an appointment. He can just leave the office open. I can't speak to the Korean system.
Third, does the Acting President have the power to fill the vacancies?
The opposition has pushed for Mr. Han to sign off on nominees to fill the bench in the nation's highest court, but Mr. Yoon's governing party has argued that only an elected president has the power to appoint justices. . . .
Mr. Han said in a televised address that he would hold off on appointing the nominees until the rival parties — that is, Mr. Yoon's People Power Party and the opposition bloc comprising the Democratic Party and other smaller parties — came to an agreement on whether he had the authority to do so as the acting president.
An acting president should "refrain from exercising the president's own significant powers, including the appointment of constitutional institutions," said Mr. Han, a career bureaucrat.
The United States confronted related questions after the death of President William Henry Harrison. Did Vice President John Tyler merely become Acting President, who could exercise all of the President's powers? Or was he actually the President? In Korea, the governing party says that only the elected President can appoint the judges. I sense there is some sort of "officer" issue at play. Maybe an analogy might be whether a recess appointee can exercise all of the powers of a confirmed officer.
Fourth, these appointments are especially important since the nine-member constitutional court can decide whether to remove the impeached President from office. Letting a court decide whether to remove the President strikes me as a very risky decision. Indeed, it is even worse that the Acting President has the power to deny the court a quorum to remove the President.
At the heart of the matter is how the court might rule on Mr. Yoon's impeachment. Six or more justices out of the nine-member court must vote in favor of impeachment to remove Mr. Yoon from office. The top court currently has only six justices, after three others retired earlier this year, meaning that the impeachment could be overturned with just one dissenting voice in Mr. Yoon's trial, which is scheduled to start on Friday.
During the constitutional convention, there was some debate about letting the Supreme Court try all impeachments. One of the arguments against that option was that there would be so few judges. By contrast, there would be more Senators to cast the vote. Our Framers were wise to abandon this proposal. And, Tillman and I explained that if the Chief Justice position is vacant, the Senate trial can proceed with the Senior Associate Justice.
Fifth, the quorum rule for this court is extremely problematic. Removal is apparently premised on having 2/3 of the full court vote to remove, not only those who are present. But due to three retirements, only six judges remain. As a result, all six present judges must vote to remove. If a single judge declines to participate, the President will not be removed. And what happens if another judge retires. It would be impossible to remove the President. By contrast, under our Constitution, it takes a vote of "two thirds of the Members present," not two thirds of the total body. Again, chalk another victory for the Framers.
Sixth, the opposition party claims that the Acting President's failure to make the appointment is an act of insurrection.
Park Chan-dae, the Democratic Party's floor leader, said to reporters that Mr. Han's words were "not those of an acting president, but of one who is admitting to insurrection."
The opposition has accused Mr. Han of aiding Mr. Yoon in his brief declaration of martial law on Dec. 3. Lawmakers accused Mr. Yoon of perpetrating an insurrection by sending troops into the National Assembly to block them from voting down his martial law and to detain his opponents. The Constitutional Court has up to six months to decide whether to reinstate or remove Mr. Yoon.
Sound familiar? During the Section 3 debates, critics argued that President Trump's failure to take certain actions to put down the riot at the Capitol was itself engaging in insurrection--or as Baude and Paulsen put it, aiding and abetting an insurrection. Seth Barrett Tillman and I responded that the President's exercise of discretion to not take certain action was not itself insurrection. In South Korea, the opposition argues that the failure to make a judicial appointment is insurrection! Query whether South Korea law provides any clearer definition of insurrection than American law.
Seventh, the parties do not even agree on how many votes it would take to impeach an acting President! If there is something that should be clear, it should be the voting thresholds. But not so in South Korea.
As for Mr. Han, the rival parties have disagreed on how many votes would be needed for him to be impeached. The ruling party maintains that a two-thirds threshold must be met since Mr. Han is the acting president. The opposition asserts that a majority vote would be enough to remove him from his office as prime minister as outlined by the Constitution. The speaker of the National Assembly, Woo Won-shik, a member of the Democratic Party, will decide before the vote.
Professor Cha Jina, a law professor at Korea University in Seoul, said that Mr. Han should be subject to a majority vote because "the acting president in South Korea is not actually the president and is just working in their stead as the prime minister."
She also noted that this was the first time in the nation's history that an acting president has faced impeachment.
Thankfully, our framers created clear standards for how many votes it takes to impeach and to remove. (The question of how many votes it takes to disqualify is fuzzier.) But, there remains an open question whether a recess appointee can be impeached. Is such a position an "Officer of the United States"? Sorry, I couldn't resist the "officer stuff." Most people stopped caring about this issue once Trump v. Anderson was decided. But "officer stuff" matters in America, and in other countries.
Update: I am happy to post some corrections and comments from Jeong-In YUN, a South Korean Constitutional Law Professor:
I read your post with great interest. As you are aware, several constitutional questions have emerged and are debated—necessarily or unnecessarily—in South Korea. Lots of work has fallen into the hands of constitutional lawyers now.
As an insider, if I may, I'd like to share some relevant info and little corrections with you. (My comments are below your text in blue)
First, the acting President refuses to make appointments to the constitutional court. And the opposition government seeks to impeach the acting president for failing to make those appointments.
Correction: opposition parties
Second, does the Acting President have the duty to fill the vacancies? At least in our system, the President is under no obligation at all to make an appointment. He can just leave the office open. I can't speak to the Korean system.
Info: In South Korea, the Constitutional Court is composed of 9 Judges: 3 are recommended by the Chief Justice of the Supreme Court, 3 are elected by the National Assembly, and 3 are appointed by the President. So, the National Assembly has the authority to nominate the three Judges, and the President has the formal authority to appoint them—in other words, the National Assembly has the power to appoint while the President has the duty to appoint. As for now, the National Assembly has already undergone the processes of election of nominees and hearings, the Acting President must appoint them as his duty.
Sixth, the opposition party claims that the Acting President's failure to make the appointment is an act of insurrection.
Correction: It seems an obvious misunderstanding. The Acting President was accused of aiding insurrection, not by refusing to appoint Constitutional Court Judges. Two are different things. The latter, the refusal to fill the vacancies at the Constitutional Court, interferes with the proper process of Presidential impeachment, constituting an obstruction of justice, thus he was impeached today.
Sound familiar? During the Section 3 debates, critics argued that President Trump's failure to take certain actions to put down the riot at the Capitol was itself engaging in insurrection--or as Baude and Paulsen put it, aiding and abetting an insurrection. Seth Barrett Tillman and I responded that the President's exercise of discretion to not take certain action was not itself insurrection. In South Korea, the opposition argues that the failure to make a judicial appointment is insurrection! Query whether South Korea law provides any clearer definition of insurrection than American law.
Correction & Info: Same is true for this. Neither President Yoon nor Acting President Han were charged with insurrection because they refused to appoint judges to the Constitutional Court. President Yoon is being criminally investigated and impeached for abusing martial law power and directly committing the insurrection, and Prime Minister Han is being investigated for aiding the insurrection. The Criminal Act of South Korea defines insurrection as acts raising a riot to overthrow government organs established by the Constitution or to make render the exercise of their functions impossible by force (Arts 87 and 91) and punishes the crime stringently with a maximum penalty of death. The Constitution excludes the President's criminal immunity from prosecution in cases of insurrection or treason (Art 84). You may refer to my post. 2024 Martial Law in South Korea — The Crossroads Between Democratic Regression or Proof of Strong Democracy — IACL-IADC Blog
Seventh, the parties do not even agree on how many votes it would take to impeach an acting President! If there is something that should be clear, it should be the voting thresholds. But not so in South Korea.
Correction: Article 65 of the Korean Constitution clearly stipulates a quorum for the impeachment of the President or Prime Minister respectively. However, the question is whether the quorum for impeachment should be based on the status of the President or the status of the Prime Minister when the Prime Minister is the Acting President. The general view of Korean constitutional scholars is that the Prime Minister is temporarily acting in exceptional circumstances—as Harris did for 85 minutes during Biden's surgery—and therefore the quorum should be based on the status of the Prime Minister.
Additional info: Differently from the US with the bicameral Congress, in South Korea, as the National Assembly is a unicameral legislature, it cannot exercise both the power to impeach and adjudicate. So, the Korean Constitution grants the National Assembly the power to impeach the President and other high officials, and an impeachment trial is conducted by the Constitutional Court.
Your interests and thoughts on constitutional issues in South Korea are really appreciated. I do hope my sincere feedback will be of help to you.
Many thanks,
Jeong-In
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Jeong-In YUN (윤정인) Ph.D.
Research Professor, Legal Research Institute & Party Law Research Center, Korea UniversityDistinguished Senior Research Fellow, Constitutional Studies Program, The University of Texas Austin
Co-chair, South Korea Chapter, International Society of Public Law (ICON-S)
