What Exactly Is South Korea’s Constitutional Court?

South Korea’s Constitutional Court is located at the foot of a hill speckled with traditional houses in Jong-no, the oldest district in Seoul. The calm, staid mood of the area, however, has been heavily disrupted over the past three months.

As the court heard the case regarding President Yoon Suk-yeol’s impeachment by the National Assembly, televised hearings occupied prime time. Yoon’s avid supporters encircled the court premise to catch a glimpse of their president in his escort vehicle; tourists and residents had to bypass the area. Even after the last argument session at the court in late February, the court appeared more in the news as South Koreans bit their nails over when it would either confirm or dismiss the legislature’s impeachment of Yoon.

When this issue went to press on March 31, over a month after the final hearing, the Constitutional Court still had not issued its ruling in Yoon’s impeachment.

Legislators and protesters of all stripes milled around to demand the court to rule in their preferred direction. Far-right YouTube hosts threatened to kill justices who would vote against Yoon’s reinstatement; security details were duly assigned to each justice. On a daily basis, loudspeakers drowned out the droning traffic and the usual spring bird songs.

The most common and vociferous phrases heard during the protests were to the effect that South Korea should demolish the court.

The Constitutional Court has monopolized South Korea’s attention lately, and will continue to do so for some time to come amid a slew of debates over its distended importance, functions, and limitations.

South Korea’s democracy took root in 1987, and almost a year later, the first Constitutional Court justices were appointed. Before 1988, the role of enforcing compliance with the constitution nominally lay with a constitutional committee within the National Assembly, or the Supreme Court, or the Impeachment Court. (The Constitutional Court existed briefly in 1950 before the Korean War.) But the legacy of these instruments was purely a sham, as South Korea was under a series of dictatorships until 1987.

The Constitutional Court is an independent, constitutional organization, separate from any chain of command and institutional ties. It consists of a panel of nine justices: three appointed by the president, another three by the legislature, and the remaining three by the chief justice of the Supreme Court. The Constitutional Court hears five types of cases, considering legislation’s compatibility with the constitution, impeachments of high-ranking government employees, the legality and potential disbandment of political parties, and the state’s violation of individuals’ rights.

There have been a number of landmark cases in the court’s relatively short history. In 1999 the Constitutional Court declared unlawful and discriminatory the law giving extra credit to male job applicants who finished mandatory military service. In 2010 it acknowledged biological differences between men and women in deeming South Korea’s all-male conscription, which excludes women, as constitutional and meeting the country’s defense needs – it reaffirmed its stance in 2014, and again in 2023. In 2019 it ordered the National Assembly to legalize abortion, and in 2023 it ruled that the government’s criminalization of distributing leaflets over the inter-Korean border impaired freedom of speech.

Most relevant to the Yoon saga, the Constitutional Court had considered two previous presidential impeachments. In 2004 it dismissed the National Assembly’s impeachment of former President Roh Mu-hyun on grounds that “misdemeanors made up of half-hearted, passive elements do not amount to an impeachable cause” – in the process setting a crucial precedent for future impeachment cases that only “grievous unconstitutionality and illegality” suffice. In 2017, the court unanimously confirmed former President Park Guen-hye’s impeachment for corruption.

The long wait for its ruling on Yoon’s case underlined yet again how the Constitutional Court presides over and determines the most momentous and important matters facing South Korea. Yet the case – and the lengthy delay in the verdict, with no explanation or timeline on offer – raised questions over whether nine justices should be so empowered to shape the country’s future.

On the surface, the court prioritizes the sanctity of the constitution and the government’s and legislature’s conformity to the document. Yet in practice the court’s logic is heavily inflected by the public will. The court’s track record suggests that it’s almost as if the justices actively heed polls and the media.

It dismissed Roh’s impeachment case shortly after his party won a landslide in the 2004 general elections and tens of thousands of people poured onto the streets of Seoul. Its rulings in favor of all-male conscription have also reflected the fact that the government and vast majority of South Korean women were opposed to all-gender conscription. Park’s impeachment case was also a breeze as most South Koreans and the legislators from the ruling party – a precursor of Yoon’s People Power Party (PPP) – supported her impeachment. There are too many instances where the court ruled according to the public taste to dismiss them as coincidences.

The court’s behavior throughout Yoon’s case is also a testament to its tendency to plumb the public sentiment. In mid-December, when the National Assembly’s impeachment motion against Yoon passed, the public overwhelmingly impugned the necessity of martial law and deplored Yoon’s unconstitutional act, as evidenced in numerous polls. The court plowed ahead with a tight schedule for hearings and witness summons, justifying the unusually fast pace of its legal proceedings as a way to minimize the consequences of “the void of leadership.”

At first, Yoon’s impeachment was seen as a given, with a decision expected to be made within days of the final hearing. What could have constituted a more “grievous unconstitutionality and illegality” than a self-coup where armed soldiers stormed the legislature and special agents roamed the country to arrest politicians and officials?

However, from January to March, the average approval rate for Yoon’s impeachment dropped below a two-thirds majority. Throughout last month, the Constitutional Court kept delaying handing down a decision. Compare this to the short deliberation period during Roh’s and Park’s impeachment crises. In Roh’s case, the general elections reflected the public’s unwavering support for Roh. In Park’s case, the average approval rate for Park’s removal was 75 percent.

This feeds into the fierce public debates over whether South Korea really needs the Constitutional Court, which other developed democracies don’t have. If the court is going to reflect the public will anyway, a popular referendum should be a more fitting method for determining national issues, critics argue.

The court’s political neutrality is also questionable. The president picks three justices and the chief justice of the Supreme Court, appointed by the president, also picks three. That means the majority of justices are bound in some way by the administration’s flavors. Unless the public overwhelmingly and adamantly says otherwise, the court, therefore, would be extremely reluctant to hurt the government.

Also, the justices have a limited tenure of six years, as opposed to lifetime tenure seen in other democracies for justices of their highest courts. They can’t help but think of their life after their tenure as Constitutional Court justices, and oftentimes are prone to lobbying and picking sides. This begets a system where national interests and constitutional principles are put on the back burner.

As the momentum builds for constitutional reform to take place in the near future, the Constitutional Court itself won’t be able to avoid some changes being made either to its structure or its very existence. After all, the public’s fondness for entrusting decisions over crucial matters to a select few derives from the anachronistic myth of respectable, learned persons knowing better than the rest of the country.