South Korea’s National Assembly has impeached a president for the second time in almost 7 years. The former prosecutor has found himself in a legally precarious position. He is facing 2 major investigations. The case focused on his impeachment from office will be heard by the constitutional court starting December 27th. The court has impeach presidents before, this is not uncharted territory. However, this is the first time ⅓ of the bench is vacant. Yoon’s martial law debacle has put the South Korean political system on full display, the good and the bad. The international community has heralded South Korea as one of the strongest democracies in Asia, especially after seeing how civil society reacted to the martial law declaration. However, Yoon’s declaration has exposed a critical flaw in South Korea’s democratic system – judicial appointments.
First, let’s take a moment to understand what the constitutional court is and how its judges are appointed. South Korea’s constitutional court is tasked with 5 major duties: adjudication on the constitutionality of statutes,impeachment of high ranking government officials, dissolution of a political party, competence dispute between government institutes, central government and/or local governments, constitutional complaint. The judges are appointed by the President, while nominations to be appointed are split between the National Assembly, the President, and the Chief Justice. Judges appointed to the constitutional court serve a 6 year term that can be renewed. There is no term limit, but the retirement age is 70.
| Justice | Term in Office (mm/yy) | Political Leaning | Appointed By |
| Moon Hyeong-Bae | 4/19-4/25 | Liberal | Moon Jae-in (P) |
| Lee Mi-seon | 4/19-4/25 | Liberal | Moon Jae-in (P) |
| Kim Hyeong-du | 4/19-4/25 | Moderate/Conservative | Kim Myeong-soo (J) |
| Jeong Jeong-mi | 4/19-4/25 | Moderate/Conservative | Kim Myeong-soo (J) |
| Jeong Hyeong-sik | 12/23-12-29 | Moderate/Conservative | Yoon Suk Yeol (P) |
| Kim Bok-hyeong | 9/24-9/30 | Moderate/Conservative | Cho Hee-dae (J) |
4 justices all have their terms expiring in April, 2025, two of which are to be nominated by the President. The constitutional court has 180 days from December 14th to either uphold or reverse Yoon’s impeachment, but with several justices due to step down the trial will have to happen even quicker. However, presidential impeachment trials are dealt with rather swiftly in the South Korean court system. Former presidents Roh Moon-Hyun and Park Geun-Hye had their impeachment trials end after 63 and 92 days respectively.
The next matter at hand the 3 vacant positions on the bench. These vacancies have emerged as the source for further confusion and disagreement. Typically, new judges are appointed rather quickly to avoid a suspension of the court. The newest judge on the bench was nominated to the position a full month before the previous term was even ended. But the 3 vacancies that followed have still not been filled, paralyzing the court. The court may be able to begin proceedings with Yoon’s impeachment case with a partially empty bench, but the final decision is likely to be made when all 9 justices are able to take their place on the bench. The fight to fill these seats has only just begun.
The battle between the DPK and the PPP is heating up as the DPK is attempting to move forward with the nomination process, and the PPP insists that ab acting president cannot appoint judges to the constitutional court. The DPK sees the presidential appointment as a ceremonial role when the Constitutional Court or the National Assembly nominated judges. Each branch, historically, takes turns nominating candidates for the each seat, ensuring that the appointments are spread evenly. As the table above illustrates, all the current judges have been nominated by the President or Chief Justice. This leaves the 3 vacant seats for the National Assembly to fill. The balance of power comes from each branch nominating judges to the court. The DPK would argue that the president having veto power over judicial nominations would break this balance of power. As the PPP tries to defend Yoon, they insist that the acting president has no right to appoint judges. This balance is extremely important. It is maintained by each branch nominated and supporting qualified, politically neutral candidates with diverse backgrounds.
This system of appointments has had a major weakness exposed, it heavily relies on all parties acting in good faith. In the time of extreme political polarization and gridlock, this system has failed. The judicial nominations process is reliant on good faith, but it incentivizes a vitriolic debate – one where both parties will fight tooth and nail. In an attempt to rediscover any good will between the 2 camps former acting president, Han Duck-Soo refused to formally appoint new judges until the 2 sides could come to some sort of agreement.
Han’s diplomatic approach would lead to his own impeachment on the 27th. 3 judges have been nominated by the Nationals Assembly, 2 from the DPK and 1 from the PPP. According to reports, the PPP did not vote to nominate these judicial candidates, however they did recommend one of the three. Han’s impeachment marks the first time a sitting and acting president have both been impeached in a single month. The deputy prime minister for economic affairs, Choi Sang-Mok, has now taken the reins. The hope is that Choi can ease the uncertainty surrounding Korean politics and the won. However, Choi has not spoken on the judicial appointments, the economy, or anything besides bringing stability. The root cause of the instability has not been addressed. The judges have not yet been appointed, 2 national leaders have been impeached, and the national Assembly is still deadlocked. South Koreans took to the street following the martial law declaration. Opposition politicians jumped barricades to try and fight another potential military coup. The people are demanding a stable democratic society. It is not the people, nor the culture, nor the past that has caused this mess. It was a single desperate politician looking to exploit a major weakness in the system – it worked.