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

On Dec. 9, 2016, the National Assembly passed a bill seeking to impeach President Park Geun-hye with 234 lawmakers in favor on 56 against it and sent it to the Constitutional Court. Right now, the court is apparently holding two hearings a week aiming to wrap up the trial quickly. No wonder the president’s attorneys are having a tough time keeping up with the fast pace.
 
This is difficult to comprehend. Are we competing in a short-track running competition? Even young football players grow tired if they play two matches a week and such a schedule (hearings lasting from 10 a.m. to 5 p.m.) will be simply overwhelming for the Constitutional Court justices (eight of whom are over 60). At least seven of the nine court justices must be present at the trial.
 
Such an unprecedented pace can give off the impression of a rushed trial. Trials require the absolute confidence of the public. The final rulings may be important, but the process is what matters. And confidence comes only through the proper adherence to a fair and rational trial process. Justices in foreign courts wear burgundy coats, wigs and speak slowly during trials, based on the experience that appearances and procedure are effective in gaining the public’s trust. Trials held by the U.S. Supreme Court are always open to the public. And the contents of the trial are posted on the Internet. And TV cameras are also allowed the broadcast the trials. This is all intended to secure fairness in the process. The purpose of all of this is to gain the trust of the public.
 
The Constitutional Court would be naive to think that it could gain the public’s trust simply based on the truth, conscience and legal principles without striving to ensure the fairness and rationality of the trial process. Or perhaps such an oversight stems from the stuffy bureaucratic culture of the court?
 
If the Constitutional Court loses the public’s trust by giving off the impression of rushing the trial, following the National Assembly’s speedy vote in favor of impeachment, the rule of law would come to an abrupt end in Korea. An apt analogy would be a goal keeper swerving too quickly to block a shot in a penalty kick and costing the game.
 
The court apparently held seven hearings a month during former president Roh Moo-hyun’s impeachment trial. That boils down to two sessions a week. But a closer look shows an entirely different story.
 
Roh’s impeachment trial differs from the current one in many aspects. First, the case was much simpler. The comments Roh made in public provided the reason for impeachment. As a result, there was no contention in terms of the content. Roh himself acknowledged what he said. As a result, no evidence was required to back the impeachment motion. The contention focused on the motive behind the comments and whether the intentions violated the Constitution or not. The focus was on whether the breach was serious enough to warrant impeachment. It was a so-called “one-point” trial. That is why nobody took issue with the convening of seven hearings during March 30 to April 30.
 
A detailed look reveals how there was no room for controversy regarding a rushed trial involving the Roh Moo-hyun impeachment proceedings. There were hardly any demonstrations calling for impeachment. In contrast, candle-light protests were held constantly calling for the impeachment to be dismissed. Also, general elections were held in the midst of the impeachment trial and Roh’s party saw the number of its National Assembly seats rise from just 47 prior to the trial to 152, grabbing a majority share. As a result, the Grand National Party, which pursued the impeachment bill, lost its resolve.
 
As a result, the first of the seven hearings simply involved reading the impeachment bill, while two involved the presenting of evidence. As a result, four full-fledged hearings were held, but most of the key GNP lawmakers who spearheaded the impeachment were not re-elected. In contrast, Uri Party lawmakers supporting Roh won a majority of seats in parliament. From a political standpoint, the results of the general election reflected the ruling of the court of public opinion.
 
As a result, the final hearings did not carry huge significance and the Constitutional Court was under no pressure from political groups, the news media and protesters in dismissing the impeachment bill. As a result, the court made the ruling that Roh’s comments did violate laws requiring public officials to remain politically neutral, but that the action was not grave enough to require impeachment. The ruling was lauded by all sides. It was a win-win resolution.
 
But the latest impeachment trial is completely different. It is the exact opposite. First, there are 13 different rationales for impeachment this time. And the defendant is denying every one of them. As a result, each point must be argued and backed by evidence, ranging from whether the tablet PC that was discovered blowing the lid off the scandal did indeed belong to Choi, or whether Park’s comments made to big businesses constitute blackmail or whether the non-profit foundations that were established were designed to collect bribe money from donors or to help the nation? All of this requires scrutinizing evidence. That is why there are scores of witnesses involved. And a lot of analysis by experts must be conducted in order to determine the veracity of the evidence provided. Take the Sewol tragedy, for instance. How will the judge be able to distinguish the truth involving what the president did in her private quarters two years ago, since the claims made by the National Assembly on what she did on that fateful day and what she herself claims are starkly different?
 
There’s an even more difficult problem to solve. There are 13 different reasons presented by lawmakers for impeachment. But at the crux of the impeachment is the ludicrous claim that Park conspired with Choi to establish non-profit sports foundations and blackmailed big businesses into donating W70 billion to W80 billion, thereby forfeiting her status as our leader. Such conjecturing is unprecedented in advanced countries and are commonly used as excuses for revolutions in African dictatorships.
 
The latest impeachment trial is fundamentally different than the one involving Roh, which focused on a technical violation. In fact, the latest trial is simply brutal. If the rationale for impeachment proves to be true, Park will have to meet a far more serious fate than simply stepping down from office. She will be dragged off to be interrogated by the independent counsel and face anywhere from 10 years to life behind bars if found guilty in a court of law. That is why the Constitutional Court cannot settle for a win-win decision in which violations are recognized, but are deemed not serious enough for impeachment. There is no happy ending. One side must go down in flames.
 
On top of that, the lawmakers who voted in favor of Park’s impeachment were recently elected and have more than three years left in their terms. In contrast, Park’s tenure will virtually end after her successor is chosen in elections in December. She will be forgotten in the minds of the news media and public. Rather, she may end up becoming an encumbrance. She may become a victim of political reprisal. As a result, none of the witnesses appearing in the impeachment trial will find it easy to speak the truth in her defense. It will be more tempting for them to make comments that appeal to those who are next in line for the presidency.
 
Not only that, the latest impeachment trial was spearheaded by the news media and candle-light protesters from the onset, contrary to what happened during the Roh impeachment process. All of Park’s opponents reached a tacit agreement to trump up a trivial scandal involving a crony that every previous president has been guilty of and made it appear as if it was an unprecedented violation in the nation’s history, pushing to oust a president in her final year in office without solid evidence.
 
On top of that, the Seoul Central District Prosecutors Office, which investigated the Choi Soon-silscandal, committed the crime of accusing the president of being not an accomplice, but the key culprit in the alleged crimes, and announced this claim in front of the news media.
 
Candle-light protesters have held demonstrations for almost a month on the streets demanding the president’s resignation. And after Park refused to cave in to their demands, the protesters turned to the impeachment option. And 60 members of the ruling party joined hands with the biased news media and protesters to ram through the impeachment bill. In other words, the National Assembly did not spearhead the impeachment. The biased news media and protesters did.
 
And that is why protesters are demanding that the Constitutional Court wrap up the impeachment trial in January. Protesters are demonstrating in front of the court every day and every weekend. And the general public is wondering if the court will be able to make a fair ruling. Judging by the situation, such concerns are completely valid. And that is why the sly intellectual elite and other high-ranking members of our society are not questioning the rationale behind the impeachment and are more interested in appealing to the next in line to become president.
 
This is why the Constitutional Court, which is the final rampart of the rule of law, must call for order. The Constitutional Court has taken on the grave responsibility of saving the collapsing rule of law in our nation right now. If the court maintains its objectivity and dismisses the impeachment according to the law, it will rise again to become the protector of the rule of law in our country.
 
But what if the Constitutional Court pushes ahead with the super-speedy trial as it is doing, which is progressing at an unprecedented rate of two hearings a week? This will undoubtedly be gratifying for the side that led the impeachment. Even lawmakers were seen abandoning their loyalty to the president when pressured by protesters, so the Constitutional Court justices will probably be no different, the protesters probably think. Those who pursued the impeachment are obviously impressed by their power. What about the general public? They will also believe that, in the end, the Constitutional Court will have to bow down to pressure. What has happened to the rule of law in Korea?
 
Even if the Constitutional Court decides that impeachment is justified by citing all kinds of elaborate jurisprudence and detailed reasons, the public will not believe the verdict. They will shake their heads as they say to themselves that their concerns while watching the rushed hearings have proven to be true. They will lose trust in the Constitutional Court. They will utterly mock the rule of law in this country.
 
It will take decades for the court to regain public trust. But it only takes an instant to lose trust. And regaining that trust is extremely difficult.
 
There is an old saying that translates into “casual coincidence.” Learned men, according to that saying, were always careful about what they said and did. In other words, they refrained from comments and actions that could be misunderstood. I sincerely hope that the Constitutional Court does not rush through the trials and give the impression that it was pressed for time. This is a piece of advice from a veteran lawyer.
 
Jan. 17, 2017