The impeachment of South Korean President Yoon Seok-yeol for his unlawful declaration of martial law demonstrated that the government is still capable of disciplining the most overt violations of the constitution and the law. But the corrosion of Korean democracy is more insidious, systematic, and widespread than a single bad apple. All three branches of government – executive, judicial, and legislative – are locked in a zero-sum game of egotistical politicking without regard for the durability of the larger system of laws, institutions, and community. They may be following the law to the letter but not its spirit. This fragile commitment to democracy stems from weak norms of mutual tolerance and forbearance.
In office, Yoon exercised a historically high number of vetoes. While it is the president’s constitutional right to request a second reading of a bill passed by the National Assembly, Yoon had been accused of abusing that right to protect himself and his family. Successive acting presidents, Han Duck-soo (former prime minister) and Choi Sang-mok (former economy minister), continued this selective practice, together vetoing 17 bills including the special prosecution acts against then-first lady Kim Gun-hee and power broker Myung Tae-kyun, and amendments to the commercial law, in just three months.
Han also refused to appoint three constitutional judge nominees recommended by the National Assembly, saying it was beyond the scope of his authority as acting president. But just months later, he appointed a nominee that requires presidential recommendation, arguing that that there is no functional difference between the authority of a democratically president and an acting president. The Constitutional Court unanimously granted an injunction to stop the appointment of his nominee.
The Supreme Court has been accused of intervening in politics by remanding the election law violation case of Lee Jae-myung – former leader of the Democratic Party (DP) and a leading presidential candidate – back to appellate courts after unprecedentedly quick proceedings. Law professionals have questioned the court’s extremely rare decision to skip the usual small panel review process and directly conduct a full bench; to conduct two meetings in four days rather than the usual once-a-month schedule; and to hand down a verdict two months earlier than the deadline. The decision to skip the panel stage altogether is reported to have been made by Chief Justice of the Supreme Court Cho Hee-dae. Cho was appointed by Yoon in December 2023.
The National Council of Judges is set to meet in the wake of the controversial decision to discuss concerns about the judiciary’s political neutrality and erosion of public trust in the judicial system. The court’s handling of Lee’s case demanded attention because a guilty verdict would bar Lee from contesting in elections for five years. His trial has now been postponed to after the presidential election.
The legislature has abandoned its responsibility of representing the people and providing oversight of the government. The People Power Party (PPP) bears responsibility for their defense of Yoon’s decision to declare martial law and disruption of the impeachment process, such as killing the first motion in the National Assembly to impeach Yoon by walking out en masse. They demonstrated a blatant disregard for democratic processes and values by actively participating or endorsing the dissemination of conspiracy theories, fake news, and threats to the democratic system. But none of this justifies the DP’s own excessive acts.
Since the beginning of Yoon’s term, the DP passed a total of 22 impeachment votes, raising concerns that they were abusing the mechanism to pressure the executive and remove nonconformists from office without considering its constitutionality and intended purpose of removing appointments who have committed a gross violation of the law. They not only impeached the ministers and prosecutors involved in the martial law plans but also the chief auditor and the Korea Communications Commission Chairperson.
Now the DP is publicly discussing impeaching Chief Justice Cho and the Seoul High Court panel for their remand of Lee’s case and proposing to pack the Supreme Court with 100 justices. Even more serious, the DP proposed a bill that would cease all ongoing criminal trials against a president-elect, in an attempt to prevent the courts from sentencing Lee if he is elected president. This addresses the current uncertainty regarding Article 84 of the Constitution, which stipulates that a sitting president cannot be criminally prosecuted except for crimes of insurrection or treason but does not mention trials that began before their election. In an incredibly brazen act of manipulation, the DP also added a clause in this amendment providing that the trial can continue if it is clear that the defendant will be ruled as not guilty. Passing legislation to suit a political purpose – manipulating the rules of the democratic game – is not illegal but clearly does not support the rule of law.
South Korea’s distinctly two-party system between the conservative and progressive parties – which relies on hostility against each other to garner support, rather than promoting policies or demonstrating competence – has led to political polarization and revenge whenever there is a transfer of power. It reveals the fragile foundation of Korean democracy: built upon mistrust in government institutions, a heavy inclination toward personality politics, and a general lack of strong informal norms that uphold the democratic infrastructure.
The current behavior of the executive, judiciary, and legislature blatantly disregards the equal right of opposing voices to governance and political competition, and lays bare a collective unwillingness to respect both the letter and spirit of the rule of law.
Democracy has not won over martial law just yet – the uphill battle has just begun.