by Kim Pyung-woo (Attorney and former head of Korean Bar Association)
On Dec. 9, 2016, the National Assembly passed a bill seeking to impeach President Park Geun-hye and asked the Constitutional Court to review it. The impeachment bill shows Park's alleged offenses classified as violations of the Constitution and violations of the law.
Violations of the Constitution include policy intervention by Choi Soon-sil who has no official title, influence-peddling and manipulating media reports by the president and Park's violation of protecting the lives of citizens amid a dispute about the government’s bungled efforts in rescuing the passengers during the deadly Sewol ferry disaster on April 16, 2014. The charges on violations of the law involve giving state secrets to Choi despite her having no security clearance, abusing power and coercing conglomerates to donate to two non-profit foundations controlled by Choi and taking bribes from conglomerates in return for business favors.
Let us take a closer look at the violations of the Constitution. But before reviewing individual charges, lawmakers pointed out broad problems. On the first page of the impeachment motion, lawmakers claimed that the president violated 12 articles of the Constitution, ranging from 'the sovereignty of the Republic of Korea shall reside in the people' to 'censorship of speech and the press.' Taken at face value, Park would be the first president to violate most of the articles of Korea's Constitution. That would put her on par with North Korean leader Kim Jong-un.
The Constitution stipulates that the rationale for impeachment be divided between violations of the Constitution and breaches of the law, which are clearly different. A violation of the Constitution is an act of denying or attacking the articles, principles or system of the Constitution. For instance, if the president violated the sovereignty of the public, she must have made comments and committed acts demeaning the sovereignty of the people or supporting monarchy. (This was the rationale used to impeach and execute Louis XVI during the French Revolution, since he attempted to restore the monarchy thereby violating the sovereignty of the people that was guaranteed by the revolutionary constitution.)
However, leaking confidential documents to Choi or failing to reveal what Park was doing during the initial seven hours of the Sewol ferry tragedy do not constitute violations of the sovereignty of the people, the principles of the rule of law or right to life. Citing those acts as violations of the Constitution that constitute rationales for impeachment is the result of a failure to properly understand the difference between violations of the Constitution and legal transgressions. In order to impeach a president on charges that he or she violated the sovereignty of the people, right to property, rule of law and principle of equality, he or she must have criticized or attacked those systems or principles and rattled their very foundations. What we are seeing is accusing the president of violating most of the articles of the Constitution for committing a mere traffic violation.
Former president Roh Moo-hyun proposed to hold a vote of confidence on his leadership. The rationale for impeaching him stems from his comments which were construed as violating the Election Law requiring public officials to remain politically neutral and vowing to quit if his election campaign spending surpassed one tenth of what the Grand National Party spent. Those comments were viewed as rejecting the principles of the Constitution.
President Park did not make any comments or commit any acts denying or attacking the Constitution. The five violations listed on the impeachment bill may constitute legal transgressions, but are not violations of the Constitution. In legal terms, there is no grounds for impeachment.
Let's look at individual points. First, the rationale for impeachment is that Park gave Choi confidential documents involving policies and appointments of key officials and had her meddle in official appointments thereby violating her duty to uphold the Constitution and the sovereignty of the public. As stated earlier, divulging confidential documents may constitute a legal transgression, but cannot be viewed as a violation of the Constitution by rejecting or attacking the sovereignty of the people or representative democracy. The National Assembly also included these items as legal violations in the impeachment bill.
Second, the impeachment bill stipulates that Park appointed officials recommended by Choi as Cheong WaDae officials and as ministers and vice ministers of culture, sports and tourism, thereby violating the Constitution which gives the president the right to appoint government officials and to remain impartial in such appointments. But the president never rejected or attacked such regulations in the Constitution. As a result, allegations of violations of the Constitution do not hold water. Moreover, hiring an official close to a confidante may constitute biased hiring, but does not constitute a legal violation. The authority of the president to appoint government officials is a form of discretionary governance that cannot be controlled by laws or regulations. What country in the world uses laws or regulations to control who the president appoints? Has any past president refrained from appointing people close to him? This does not constitute any constitutional or legal violations. This is purely a political matter and using it as rationale to impeach the president is mind-boggling. I wonder how the Constitutional Court justices will handle this case.
Third, the president is accused of violating the Constitution by infringing upon the property rights of businesses, infringing upon the rights of individuals to choose their occupations, infringing upon the right to basic human rights, damaging market order and failing to uphold and obey the Constitution. Park has personally denied that she denied or attacked the articles of the Constitution she has been accused of violating. As a result, no violations of the Constitution have been made. And the National Assembly included those acts as legal violations in the impeachment bill. Such offenses could be dealt with as legal violations.
Fourth, the president is accused of violating freedom of the press and infringing upon the rights of individuals to choose their occupations by ordering her secretary to replace the president of the SegyeIlbo daily. But Park has not committed any act that blocked or damaged freedom of the press or freedom of an individual to choose his occupation. As a result, no violations of the Constitution have been made. Moreover, the contents of the president's instruction have not been specified based on the five Ws and one H.
Fifth, the president has been accused of violating an individual's constitutional right to life after her whereabouts during the initial seven hours of the Sewol ferry accident remain unclear, while Park has not personally clarified in detail what she did. As seen earlier, the president has not denied or attacked the rights of individuals to life so no violations of the Constitution have been made. Not only that, what the president did during the first seven hours of the ferry disaster pertains to her privacy and cannot be used as rationale to impeach her on charges of violating her official duties. Moreover, Park's whereabouts has no relationship with the deaths of the Sewol ferry passengers and cannot be construed as contempt toward the right to life of individuals. The Sewol ferry disaster took place two years ago and accusing the president of charges involving the accident now can only be viewed as an attempt to use the tragedy as an excuse to oust her and goes against the fundamental purpose of the impeachment process. But more fundamentally, the president's own right to free speech (including her right to remain silent) have been violated making the impeachment bill go against the Constitution.
In conclusion, most of the articles of the Constitution the president has been accused of violating (in particular the fact that the sovereignty of the Republic of Korea shall reside in the people and the rights of individuals to life) are more suitable for a bill seeking to impeach North Korean leader Kim Jong-un. They are not suitable for the president of a democratic country like the Republic of Korea. In my opinion, the National Assembly should withdraw its impeachment bill.
Dec. 23, 2016