by Kim Pyung-woo (Attorney and Former Head of Korea Bar Association)

A state of emergency has persisted for over a month after the National Assembly passed a bill to impeach President Park Geun-hye on December 9, 2016 resulting in the suspension of her authority and prompting the prime minister to serve as acting president. The focus of the entire nation is on the Constitutional Court, which is deliberating the impeachment bill.
 
The streets surrounding the Constitutional Court are said to be filled with reporters. And especially on weekends, thousands to tens of thousands of protesters converge around the court chanting slogans demanding that the judges rule in favor of impeachment as soon as possible.
 
In the case of a demonstration that supports or opposes impeachment, the government cannot comment on the contents of the demonstration itself, because freedom of speech, whether involving an individual or group, is protected by the Constitution. However, the time, place, and manner of expression are not free. They are restricted by law. In particular, protests surrounding government buildings and public roads must be approved by the government in advance.
 
Moreover, expressions of speech targeting the trial, that is to say the judiciary, are subject to more stringent restrictions, because the court is the final process of deciding on truth and justice. There is a clear distinction with politics, which deals with the well-being of the people and the nation. The judiciary is an area to which the political principles of democracy are not applicable. First of all, unlike politics, the principle of majority rule does not apply to justice.
 
It is not like politics, in which a view becomes unconditional justice if two-thirds of the members of parliament agree. It is not a place where public opinion is used to make a judgment. It is not a system that rules in favor of presidential impeachment simply because all of the biased news media support it. It is a system that confirms truth and justice by precedence, evidence and the morality of the judges.
 
Therefore, the National Assembly should not interfere with the judiciary. The government should not try to control it. This is because such practices violate the principle of separation of the three branches of government according to the Constitution. This is clear to everyone. However, as far as the judicial system is concerned, the public should not intervene. The parties involved in the impeachment trial are the National Assembly and the president. Whether they support the National Assembly or the presidential, members of the public should not converge around the court and cheer like spectators watching a sports match. The court is not a sports stadium. The news media should not disseminate any reports that predict the outcome of the trial. As the Korean media has been doing over the last few months, journalists should not act like police investigators or judges. Reporters must not act try to lead the Constitutional Court judges, treating the justices like ignorant people in need of guidance. Everyone should step back and wait for the judiciary to arrive at an independent, impartial and fair ruling.
 
Let me stress again that what is needed most by the Constitutional Court is to ensure fairness in the impeachment trial process. Of course, it is also important to ensure a prompt trial so that political anxiety and confusion are not amplified. But the most important thing for the Constitutional Court is not speed. The Constitutional Court is not required to place priority on minimizing the confusion and anxiety the central government is experiencing due to the impeachment. That is the job of the National Assembly, the news media and the public. The Constitutional Court justices are not responsible for such matters, since they are not politicians. If the Constitutional Court judges place priority on such matters, the court would have lost track of its mission.
 
In that case, the rule of law in our country would completely collapse. We will end up becoming just like China and North Korea. The fairness of the trial would be destroyed if we allow massive protests to continue around the court house. It is impossible to prove that fairness has been breached, since it is intangible. But if intangible psychological pressure is exerted on the Constitutional Court judges in terms of time, place and method, that would constitute an invasion or threat to the impartiality of the justices.
 
Therefore, the government should prohibit any demonstrations taking place around the Constitutional Court. At least areas of Seongbuk-gu, Jongno-gu, and Jung-gu, Seoul, that are adjacent to the Constitutional Court should not be authorized to stage any form of individual or collective demonstration against the impeachment trial during the impeachment proceedings of the Constitutional Court. Such acts should be prohibited. This constitutes freedom of the press that complies with the Constitution. Permitting demonstrations or looking the other way in the name of freedom of speech is against the law and tantamount to dereliction of duty.
 
If the government does not stop it, the Constitutional Court should take matters into its own hands. A lack of action by the Constitutional Court could be misunderstood as the court abandoning the constitutional demands of a fair trial.
 
There is a procedure in litigation law called transfer. This is a system allowing a trial to be transferred to another court if a fair trial cannot be ensured. For example, if the judge rules that it is too difficult to hold the trial in Seoul due to the intensity of the demonstrations, the case is sent to a court in another district. There have been hardly any instances like this, but they are quite common in foreign countries, such as the U.S. (of course this is due to the uniqueness of the jury system). However, the Constitution Court does not have an alternative. It is the only court of its kind in Korea.
 
Then what? I know there is a spokesperson and public affairs official at the Constitutional Court. A request must be made through the spokesperson or public affairs official calling for the restraint or suspension of all demonstrations in the name of the presiding judge and all of the justices of the Constitutional Court. If the government does not take action, the court should warn that it will halt the impeachment trial. This is something the court should have done a while ago.
 
If the Constitutional Court calls for a speedy trial without taking such minimum of steps, the court could end up becoming the target of suspicion that it succumbed to the demands of the protesters and made a politically-motivated ruling, regardless of the true intentions of the judges. It will be extremely difficult to offer an explanation.
 
I am worried that the brilliant reputation and status of the Constitutional Court, which has been established by its judges, will become tarnished. No, I am worried that the rule of law in this country will completely collapse.
 
I am confident that the Constitutional Court justices will deal with the matter. But I am simply making a suggestions as a veteran lawyer due to concerns that the court may be leaving a impression that it is more interested in wrapping up the trial quickly than on ensuring the fairness of the trial.
 
Jan. 16, 2017