Yoon's impeachment trial: a test for Korea's rule of law

Park Jung-won

President Yoon Suk Yeol’s reaction to a democratic president’s worst political nightmare — impeachment and possible removal from office, pending a trial — couldn’t have been more different from that of his conservative predecessor, Park Geun-hye. Despite being impeached by the National Assembly and confined to his residence for some 40 days while being blasted by nonstop media criticism, Yoon has never lost his composure.

After his martial law declaration on Dec. 3 was rejected by the National Assembly, Yoon explained in detail the reasons for his decision and asserted its legitimacy. He maintained the same stance before being arrested by the Corruption Investigation Office for High-ranking Officials (CIO) on charges of rebellion. He sent messages to those in the streets protesting his arrest, encouraging them to continue the fight; he handwrote a long and detailed letter about the events that led to the current situation and the value he sees in this struggle; and just moments before his detention, he even recorded a three-minute video using a phone to express his views.

Yoon’s high approval rating, currently nearing 50 percent, points to two things: many may infer from his confident stance that he has no guilt to hide; and that fighting back against what they perceive as unjust persecution is viewed as the right thing to do.

Yoon’s subjection to unfair legal treatment during the investigation for treason charges has deeply unsettled not only conservatives but also some moderates and has struck a chord, especially with younger people. Despite the Criminal Procedure Act proclaiming noncustodial investigations as a fundamental principle, the CIO, whose investigative authority is unclear, has engaged in various irregularities and illegalities, including the issuance of warrants to arrest the inactive (but still technically sitting) president, who posed no risk of flight or destruction of evidence. When Yoon’s situation is compared with that of Lee Jae-myung, leader of the main opposition Democratic Party of Korea (DPK), a sense of significant unfairness may be felt. Despite the fact that Lee is currently undergoing five separate trials, courts have granted him ample defense rights, and he continues to be an active member of the National Assembly.

The opposition’s strategy is to brand these recent events as the work of “far-right” forces, but the more they do this, the more likely Yoon’s approval ratings will climb. Even if there are valid questions surrounding Yoon’s botched martial law declaration, the legal handling of the matter has led many people to doubt whether Korea is truly a democratic country governed by the rule of law. The fact that young people in their 20s and 30s, many of whom might be ordinarily inclined toward left-wing political views, are showing strong support for Yoon cannot be dismissed as the actions of impulsive far-right groups.

To think that the young people opposing Yoon’s impeachment are blindly supporting him personally would be a gross misconception. They grew up during a time when Korea had already established itself as a procedural democracy and delivered economic prosperity. They have a very different view of democracy compared with many of Lee’s aides, who come from an older generation that learned politics through the simplistic binary prism of military dictatorship versus democracy that existed in the 1980s. The DPK’s desire to monitor even personal text messages under the pretext of cracking down on misinformation is seen as a step too far. They have already learned too much about the hypocrisy and contradictions coming out of the DPK’s political playbook.

Yoon’s supporters suspect that the Constitutional Court, which is handling the impeachment trial, has already decided against him and is proceeding with a rapid “show trial” to remove him from office. The court recently stated that it would act in the interest of “the people.” But which people are they referring to? Are only those who support the DPK considered the people but not Yoon’s supporters? Or would they dismiss Yoon’s impeachment not on the merits but if the polls show his removal is unpopular?

Ronald Dworkin, the late legal philosopher, suggested making a distinction between “easy” cases and “hard” cases in trials. Easy cases involve the straightforward application of rules, such as for traffic violations, that are uncontroversial. In contrast, hard cases involve fundamental conflicts of legal principles, raising significant debates about the legitimacy of a verdict and requiring careful, integrative interpretation. The issue of whether a president’s declaration of martial law violates Korea’s Constitution — which states that “the President may proclaim martial law under … conditions” — is a quintessential hard case, fundamentally different from traffic violations. Dworkin argued that hard cases entail “theoretical disagreements in law” due to unresolved fundamental values, making interpretation inherently challenging.

To ensure a proper impeachment trial, it is thus essential to thoroughly examine a number of issues, such as whether the president’s declaration of martial law under the constitution qualifies as an act of governance; the precise meaning of liberal democracy as stated in the Constitution; the potential covert activities of pro-North and anti-state forces in South Korean society; whether the government’s ability to perform its normal administrative and judicial functions had been helplessly hindered by legislative tyranny by the opposition; and whether issues of election fraud have been significantly prevalent.

Impeachment proceedings are necessarily complicated and time-consuming. The testimonies of relevant witnesses and experts, as well as all the evidence, need to be thoroughly reviewed. Should the presidential impeachment trial be concluded in just a few months (rumors are that the court will finish the case by late March), while Lee’s minor cases have taken two and a half years without a Supreme Court ruling?

Were the court to conclude the trial in such a hasty and flawed manner, Korea could head toward a state of civil war. If the president has staked his political life on declaring martial law, then the court’s justices must also stake their judicial careers, and perhaps even the fate of the country, on conducting a fair trial.

Park Jung-won (park_jungwon@hotmail.com), Ph.D. in law from the London School of Economics, is a professor of international law at Dankook University.