Korea's Constitutional Court: Free From Politics?

The Constitutional Court of Korea is one of the two highest courts in the country's court system. It was established by the 1987 Constitution, which also granted it the authority to review matters of constitutionality. The court has ruled on several landmark cases in South Korea's contemporary history, including decriminalizing abortion and the impeachment of former President Park Geun-hye. The court's nine justices are appointed by the President of South Korea, with three justices each appointed from candidates selected by the National Assembly and the Supreme Court chief justice. While the court is meant to be free from political influence, with justices prohibited from joining political parties or participating in politics, there have been concerns about political interference in its composition and decisions.

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The Constitutional Court's jurisdiction

The Constitutional Court of Korea is one of the two highest courts in the country's court system. It has the authority to review matters of constitutionality and its jurisdiction is defined in Article 111 Clause 1 of the constitution.

• Adjudication on the constitutionality of statutes: The Court may review the constitutionality of statutes at the request of ordinary courts, a power referred to as judicial review. In a legal dispute, if the court's decision depends on the constitutionality of laws relevant to the case, either party may request the Court to review the constitutionality of the statute in question. The Court has the final say on whether a statute is constitutional or not.
• Impeachment: The Court has the power to decide on impeachment motions, including those against the President. The Court may take up to 180 days to render a judgment on impeachment cases.
• Dissolution of a political party: The government may request the Court to dissolve a political party if its objectives or activities are deemed to violate the liberal democratic basic order. The Court rarely accepts dissolution petitions and even less often rules in favour of dissolving a political party.
• Jurisdictional dispute: The Court has the authority to adjudicate on competence disputes between the National Assembly, the Government, the Court itself, and the National Election Commission.
• Constitutional complaint: The Court handles cases relating to freedom of expression and information, political speech, defamation, privacy, right of reply/correction, digital freedom, freedom of the press, broadcasting and cable, obscenity and pornography, and access to information.

The Constitutional Court of Korea has delivered several landmark decisions, including the decriminalization of abortion, the impeachment of Park Geun-hye, and the impeachment of Yoon Suk Yeol for declaring martial law. The Court has also cited international laws and conventions in its decisions, including those from the United States, England, Germany, France, and Japan.

Impeachment and dissolution of political parties

The Constitutional Court of Korea has jurisdiction over matters of impeachment and the dissolution of political parties. The court's jurisdiction is defined in Article 111 Clause 1 of the constitution.

In December 2024, the Constitutional Court of Korea upheld the impeachment of President Yoon Suk Yeol, removing him from office. Yoon was accused of imposing martial law to resolve a political deadlock, which experts said was a clear violation of the constitution. The imposition of martial law sparked the nation's worst political crisis in decades. Yoon's lawyers slammed the court's ruling as a political decision. Following the ruling, Prime Minister Han Duck-soo became the acting president, and a snap election was triggered to elect the next president within 60 days.

In South Korea, impeaching a president requires the support of two-thirds of parliament, and at least six justices of the nine-member Constitutional Court must endorse it. In the case of President Yoon, the National Assembly voted 204-85 to impeach him, and the Constitutional Court upheld this decision.

The Constitutional Court of Korea also has the authority to dissolve a political party if its objectives or activities are deemed to violate the liberal democratic basic order. This provision was influenced by its German equivalent, Party Ban, designed to prevent anti-democratic factions from destabilizing society. However, it is important to note that the Constitutional Court rarely accepts dissolution petitions and even less often rules in favor of dissolving a political party. As of April 2023, the Unified Progressive Party is the only political party dissolved through this provision.

Judicial appointments and independence

The Constitutional Court of Korea was established by the 1987 Constitution, which also granted it the authority to review matters of constitutionality. It is one of the two highest courts in the South Korean court system, alongside the Supreme Court of Korea.

The Constitutional Court consists of nine justices, including one chief justice, officially titled the President of the Constitutional Court. According to the Constitution of South Korea, all justices are appointed by the President of South Korea. However, three justices are appointed from candidates selected by the National Assembly, and another three are appointed from candidates nominated by the Supreme Court chief justice. To be appointed as a Constitutional Court justice, one must be at least 40 years old, qualified as an attorney, and have more than 15 years of experience in legal practice or academia. While the exact procedure for the nomination of justices is not specified by statutes, the nomination of the three justices from the National Assembly is determined through political negotiation.

The Supreme Court of Korea is the highest ordinary court in the judicial branch of South Korea and has traditionally represented the conventional judiciary. It consists of 14 justices, including the chief justice. Justices of the Supreme Court serve an initial term of six years, which can be renewed until the mandatory retirement age of 70. During their term, justices cannot be removed from office except through impeachment or a sentence of imprisonment. They are also prohibited from engaging in any political party affiliations or activities.

The Constitutional Court has faced political controversies, particularly regarding the appointment of justices and the filling of vacancies. In December 2024, the court had three vacancies, prompting a debate over whether acting presidents could fill these positions. The opposition Democratic Party of Korea (DPK) argued that acting presidents could fill the vacancies, emphasising that the presidential appointment of National Assembly-recommended nominees is largely procedural. However, the appointments proposed by the DPK stalled in the National Assembly due to a lack of consensus between the parties. This situation highlighted the potential for political influence in the appointment process and the court's exposure to political instability or gridlock, especially in cases of disagreement between the president and the National Assembly.

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Political influence and manipulation

The Constitutional Court of Korea is one of the two highest courts in the country's court system. It was established by the 1987 Constitution, which also granted it the authority to review matters of constitutionality. The court's jurisdiction includes adjudication on the constitutionality of statutes, impeachment, dissolution of a political party, jurisdictional dispute, and constitutional complaint.

While the court is meant to be independent, there have been instances where it has been influenced by political considerations. For example, in 2024, the court became a political battleground following the impeachment of President Yoon Suk Yeol for declaring martial law. At the time, the court had three vacancies, leading to a debate over whether acting presidents could fill those vacancies. This situation highlighted the potential for political influence in the court's composition.

The process of appointing Constitutional Court justices also involves political negotiation. While the president of South Korea appoints all nine justices, three are appointed from candidates selected by the National Assembly, and another three are appointed from candidates nominated by the Supreme Court chief justice. This appointment structure reflects the civil law tradition of viewing ordinary courts as the core of the judiciary, with the National Assembly representing the legislative branch and the president representing the executive branch.

In addition, the Constitutional Court has the power to dissolve political parties if their objectives or activities are deemed to violate the liberal democratic basic order. While this provision aims to prevent anti-democratic factions from destabilizing society, it also carries the risk of being abused by authoritarian leaders to suppress dissent and free speech. The court rarely accepts dissolution petitions and even more rarely rules in favor of dissolving a political party.

The Supreme Court of Korea, the other apex court in the country, has also faced accusations of political influence. For instance, former chief justice Yang Sung-tae was accused of influence-peddling during Park Geun-hye's presidency, allegedly intervening in a case in exchange for the creation of proposed appellate courts. The Supreme Court has also been criticized for its perceived leniency toward chaebols and internal political conflicts within the judiciary.

The court's role in a democratic society

The courts play a crucial role in a democratic society, acting as a check on the behaviour of those in authority and providing a forum for resolving disputes between citizens and the government. This role is particularly important in a democracy with separated powers, where the courts have the power to adjudicate on the constitutionality of statutes and the actions of those in power.

In a democratic society, the courts are expected to be independent and free from political influence. This independence is essential to maintaining the integrity of the judiciary and ensuring that decisions are made impartially and without bias. The appointment of judges in a democratic society is typically designed to promote this independence, with judges appointed through a merit-based process and given long terms or even life tenure to insulate them from political pressure. In the case of South Korea, the Constitutional Court was established by the 1987 Constitution and is one of the two highest courts in the country's court system. It has the authority to review matters of constitutionality and has made several landmark decisions, including the decriminalization of abortion and the impeachment of former President Park Geun-hye.

However, the South Korean judiciary has not been without its controversies. The Supreme Court, for example, has faced criticism for its perceived leniency towards chaebols and internal political conflicts. There have also been concerns about the potential for political influence in the appointment of Constitutional Court justices, as three of the nine justices are appointed by the president, and another three are appointed from candidates nominated by the National Assembly and the Supreme Court chief justice respectively. While the exact internal procedure for the nomination of these justices is not specified by statutes, it is known that political negotiations play a role in the selection process.

Despite these concerns, the Constitutional Court of Korea has generally been regarded as a judicial authority. The court's structure reflects the civil law tradition of viewing ordinary courts as the core of the judiciary, and the requirements for appointment as a Constitutional Court justice are outlined in the Constitutional Court Act. Additionally, the court's jurisdiction is defined in Article 111 Clause 1 of the constitution and includes matters such as impeachment, dissolution of a political party, and constitutional complaints.

In conclusion, the courts play a vital role in a democratic society by providing a check on the power of the government and resolving disputes. The independence of the judiciary is crucial to maintaining the integrity of the democratic process, and steps must be taken to ensure that the courts are free from political influence. While South Korea's Constitutional Court has faced some criticism and concerns regarding political influence, it has nonetheless played an important role in delivering landmark decisions and upholding the constitution.

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