Wednesday, February 23, 2005

Impeachment of Roh Moo-hyun

2004 was an important year for the Constitutional Court, as it intervened and served as the final arbiter in two highly contested political conflicts between the legislature and the president. First, in May, two months after President Roh Moo-hyun was impeached, the Court thwarted the National Assembly’s attempt to remove Roh and reinstated him as the president. Second, in October, the Court blocked the government’s plan to move the capital of Korea on grounds that the relocation plan violated the Constitution. This post is about the impeachment case.

Roh’s impeachment and subsequent reinstatement (see here for a collection of newspaper articles about the case) is a landmark event not only in modern Korean history but also in the history of modern constitutionalism generally, given that it marked the first time that a president impeached by a legislature was reinstated by a judicial body. The case is especially interesting because the Court directly engaged with merits of the legislative judgment to impeach the president.

The National Assembly impeached Roh on multiple grounds, but the claims boiled down to the following three. First, the Assembly accused Roh that his open support for his political party in the upcoming April elections was in violation of the requirement that public officials remain "politically neutral" and refrain from influencing elections. Second, the Assembly alleged that Roh accepted bribes and illegal campaign funds during his presidential election. Third, the Assembly accused Roh of general incompetence and maladministration. The Court agreed with the first claim (political neutrality) but dismissed the rest (corruption and maladministration). However, the Court ultimately held that Roh's failure to remain politically neutral was not serious enough a wrongdoing to justify removing him from power.

The Court could have reached the same result (i.e., reinstating Roh) in a number of ways. Option 1 was to find a procedural defect in the way in which the impeachment vote had taken place. Given the chaos surrounding the vote (see here), this was not a far-fetched scenario. Option 2 was to find that Roh did not violate any laws (The Constitution limits grounds for impeachment to violations of the law). This was a plausible route, too, given that the law Roh was accused of violating could have been limited, given Roh's special position as the president and the obvious freedom of expression concerns it raised. (In fact, Roh protested that in advanced democracies like the U.S., the president openly campaigns for candidates from his party -- he cited an episode of the West Wing to make this point.) Option 3 was to find that there was indeed a legal violation and that there was nothing wrong with the procedure by which Roh was impeached but to disagree with the National Assembly’s judgment that Roh’s wrongdoing rendered him unfit for office.

The Court went with Option 3, holding that even though Roh broke the law, his wrongdoing was not serious enough to warrant his removal from office. From the American perspective at least, it seems extraordinary to have a system in which a group of unelected judges can overturn the judgment of a democratically representative body that a president should be removed from power on the ground that the Court simply disagrees with the legislature on the seriousness of the wrongdoing. After all, Alexander Hamilton wrote in the Federalist Papers, "The awful discretion which a court of impeachment must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons."

One crucial fact to keep in mind here is that the public was overwhelmingly against the impeachment. In fact, a month after the impeachment motion passed -- and a month before the Court came down with its decision -- the General Elections took place, and the parties that supported the impeachment lost seats and their supermajority status, and the very party that Roh was impeached for supporting came out victorious, winning the majority of seats.

But that does not explain why the Court took the option that was more aggressive than was necessary. Perhaps the Court felt the need to acknowledge the ways in which Roh behaved improperly? At least to communicate that Roh was not acting "presidential" enough?

There are many sides to this case. I discuss some of the issues the case raises in an article to be published in the Spring 2005 issue of the American Journal of Comparative Law, and here is the current abstract to the piece.


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