South Korea’s impeachment battle Is democracy in action

Yoon Suk-yeol’s latest political gambit undoubtedly did not unfold as he expected. After abruptly declaring martial law on December 3, South Korea’s scandal-plagued president was forced to lift the order within hours in the face of public protests and legislative opposition. He now faces an impeachment motion filed by the opposition Democratic Party, which has condemned his “insurrectionary behavior.”

As of this writing, the opposition is eight votes shy of what it needs to oust Yoon. But given the artful design of South Korea’s 1987 constitution and the country’s recent experience with impeachment, the opposition has an advantage, and it stands on firm legal ground. Yoon’s removal would serve as a global example – in stark contrast to the United States – of how democracies can and should deal with those who abuse the privileges of incumbency.

A South Korean president can be impeached for violating “the Constitution or other laws in the performance of official duties.” While a simple majority in the National Assembly can propose an impeachment bill, it must then be approved by a two-thirds supermajority. As in the US, the constitution limits the effect of impeachment to removal from office, and expressly leaves open the possibility of a criminal prosecution. But unlike in the US, a Korean president who faces impeachment immediately passes his or her duties to the prime minister. And in another departure from the American model, the impeachment motion then goes to the Constitutional Court for final approval.

This design has resulted in two successful impeachments in the last two decades. In 2004, President Roh Moo-hyun was impeached, but the Court held that the charges against him were inadequate to justify his removal. Roh went on to finish his term, but later committed suicide while facing corruption charges. Then, in December 2016, President Park Geun-hye was impeached, and this time the Constitutional Court confirmed the decision. In 2018, Park was convicted on criminal corruption and abuse-of-power charges and given a prison sentence (she was released in 2021).

South Korea’s experience with impeachment is rare. A recent study I co-authored shows that there were only ten successful impeachments globally between 1990 and 2017. Yet South Korea has generated valuable precedents for others to follow. While some might argue that it is undemocratic to remove a democratically elected leader, the South Korean experience shows that impeachment can be an effective instrument for defending democracy.

South Korean legislators today know that they won’t be breaking new ground if they impeach Yoon. Unlike impeachment in the US, the Korean process remains a credible, serious part of the country’s democratic politics. Legislators can be reassured by the fact that past decisions to remove a president have not been seen as merely partisan. Since the vote in the Park case was bipartisan, members of Yoon’s People Power Party cannot take refuge in simply voting along party lines. Precedent demands that they take their constitutional responsibility seriously, as others before them have done.

The Constitutional Court’s certification of their decision – in effect, checking the legality of their work – also serves an important function, shielding legislators from accusations of partisan impropriety. In 2004, the court made clear that while the National Assembly had a political and fact-finding role to play, judges would ultimately decide whether the facts presented met the constitution’s threshold for removal. Nor can legislators be accused of acting undemocratically. After all, a fresh election necessarily follows from a successful impeachment vote. Far from overruling the people, they are preventing the people’s trust from being abused.

The Constitutional Court’s final review and the quick triggering of new elections are both missing in the US system, which is clearly worse for it. Thanks to wise choices made by the drafters of the South Korean constitution, impeachment functions as a “hard reset” of the democratic system. When malign incumbents show their true colors, they can be shown the door before public confidence in the system is lost. The 2004 court ruling in Roh’s case made this very point. The justices held that impeachment should occur only if there is a grave violation of the law, and if a president’s removal is “necessary to rehabilitate the damaged constitutional order.”

Given this standard, there is a powerful case for concluding that Yoon’s actions – even more so than Park’s – fit the bill. Under the 1987 constitution, the president may declare martial law solely “to cope with a military necessity or to maintain the public safety and order by mobilisation of the military forces in time of war, armed conflict, or similar national emergency.” Yoon’s decision not only fell far short of this standard; it made a mockery of it.

In his speech declaring martial law, Yoon did not even bother to cite any “military necessity” or credible threat to “public order.” Instead, he offered an intemperate word salad of complaints about legislators’ fiscal decisions (which had supposedly turned the country into a “drug paradise”), investigations into his scandals, and unsubstantiated claims about “threats of North Korean communist forces and … shameless pro-North Korean anti-state forces.” Far from meeting the constitutional standard for imposing martial law, Yoon’s erratic behavior and plain disregard for the facts revealed a reckless disregard for South Korea’s democratic system.

At a moment when leaders in other backsliding democracies seem to enjoy impunity, South Korea’s latest impeachment saga is a reminder that democracy, once established, can easily be lost through inattention or venality. The authority of a president must not be confused with the naked flexing of power by someone who once won an election.

Aziz Huq, Professor of Law at the University of Chicago, is author of The Collapse of Constitutional Remedies (Oxford University Press, 2021).