Explaining the Yoon Suk-yeol Battles with South Korea's Dubious Judiciary

President Yoon Suk-yeol, now detained over his December 3 martial law declaration, faces three uphill battles. One is a Constitutional Court ruling that will ultimately determine the fate of his presidency. Another is a criminal trial in which he is accused of orchestrating an insurrection.

If at least six of the eight constitutional court judges uphold the impeachment motion, Yoon will be permanently removed from office. A conviction in the subsequent criminal trial could lead to a life sentence or even the death penalty for the defendant.

Setting aside these critical trials, the president faces yet a third challenge: dubious judicial decisions that could seriously undermine his pending court cases.

Dubious Arrest Warrants

Notable examples are found in the two initial arrest warrants and a formal arrest warrant issued against Yoon by the Seoul Western District Court.

On December 31, Judge Lee Soon-hyun boldly disregarded two explicit legal procedural rules and granted an unprecedented arrest and search warrant against a sitting president.

Articles 110 and 111 of South Korea's Criminal Procedure Act state that seizures and searches in areas involving classified military matters, or where official secrets are at risk, require consent from the person in charge.

Officially, the presidential residence is designated as an area of sensitive military matters. That means any search or seizure requires authorization from the head of the presidential security service. Despite this, Lee inexplicably wrote in his warrant that these provisions did not apply in Yoon's case.

*Protesters gather before Seoul Central District Court calling for the revocation of Yoon's arrest warrant in January (©Kenji Yoshida)*

Judge Shin Han-mi's second arrest warrant issued on January 7 carries the same underlying problem. But this time, perhaps noticing the legal controversy surrounding the first warrant, the judge avoided addressing the two articles in the warrant.

Armed with the controversial warrants, the Corruption Investigation Office for High-ranking Officials (CIO) apprehended Yoon at his residence on January 15.

Four days later, in yet another unprecedented move, Seoul Western District Court Judge Cha Eun-kyung approved a formal arrest warrant against Yoon, extending his detention.

*Demonstrators rally in Gwanghwamoon Square, Seoul, protesting Yoon's arrest (©Kenji Yoshida)*

CIO Reasoning

The CIO listed seven reasons to justify an extension. Beyond citing the need for further investigation, it claimed that Yoon posed a risk of destroying evidence and might declare martial law again if not held in custody.

As proof of evidence destruction, the CIO cited that Yoon had changed his cellphone and deleted his Telegram account around the time of the martial law declaration.

The phone in question, however, was reportedly replaced in late November, amid mounting criticism of Yoon and his wife over an unrelated scandal. As for the Telegram app, investigators and mainstream media have never disclosed the exact details.

Likewise, the suggestion that Yoon could impose martial law a second or third time lacks credibility. Following his parliamentary impeachment, Yoon's authority was suspended. He is incapable of issuing any such decree even if he wanted to. This far-fetched idea stemmed from Oh Dong-hoon, the head of the CIO and the same individual who, during a parliamentary hearing, suggested that Yoon might have fled his residence to evade arrest.

What the Judges Missed

The three judges also overlooked a critical jurisdictional question. By its own mandate, the CIO doesn't hold the authority to investigate or prosecute a president on insurrection charges. Numerous legal experts, including the Minister of the National Court Administration, have emphasized that investigative authority rests solely with the police.

Yoon has thus rightly resisted any probe by the CIO. The situation bears a classic example of a poisonous tree: if the root of a tree is tainted, every fruit it bears must also be deemed corrupt. By this logic, all investigative records produced by the CIO should, in principle, be rendered invalid.

Since the CIO lacked prosecutorial authority, the case was transferred to the prosecution, which formally indicted Yoon on January 26. The president now faces the possibility of detention for up to six months while a trial court rules on charges of inciting insurrection.

*Pro-Yoon protesters gather before the CIO building demanding the release of detained President Yoon (©Kenji Yoshida)*

Questions About the Constitutional Court

In addition to these legal challenges, the Constitutional Court hearing Yoon's impeachment motion has also exhibited questionable behavior.

Recent reports reveal that the court consulted with the plaintiffs in pre-trial hearings before excluding insurrection charges from the impeachment motion. Rather, the court will shift focus on whether Yoon adhered to the proper procedures in declaring martial law and whether his subsequent actions violated the Constitution.

The lead opposition the Democratic Party says that insurrection charges should be left to the criminal courts to decide and that amending the article is necessary to expedite Yoon's impeachment trial.

But this is striking about-face for a party that for weeks has relentlessly promoted the notion that Yoon incited insurrection on December 3. They aggressively molded the narrative for public consumption. The term "insurrection" appears 29 times in the impeachment article, accounting for roughly 70% of the charges.

The removal of the insurrection charges from the article raises two critical issues.

First, 12 lawmakers from the ruling People Power Party voted in favor of Yoon's impeachment on December 14 specifically because those charges were included in the motion. Without the 12 votes, the motion would not have passed in parliament. It is no surprise, then, that these lawmakers are now claiming a "fraudulent impeachment" and calling for a revote.

Second, the court's action robs the president of a fair trial. Constitutional law experts argue an indictment, or an impeachment bill in this case, must remain consistent throughout the process. If there is a significant change in the facts of the motion, the court must strike it down.

Backward Priorities of the Constitutional Court

The Constitutional Court's arbitrary prioritization of certain cases is also a cause for concern. Notably, the court will rule on February 3 whether Acting President Choi Sang-mok's decision not to appoint one of the three Constitutional Court justices violates the Constitution.

*South Korean Constitutional Court Building in Seoul (©Kenji Yoshida)*

Originally, there were three vacancies on the Constitutional Court from expired tenures that were to be filled by parliament. The opposition Democratic Party and the ruling People Power Party each selected one judge, while the final selection was to be made through negotiations. On December 31, Choi appointed two but decided not to appoint left-leaning Judge Ma Eun-hyuk, citing a lack of agreement between the opposition and the ruling party.

It is worth questioning whether this matter is truly urgent for the court. The current eight-member panel meets the quorum required to hear and rule on presidential impeachment. There is also a clear precedent from former President Park Geun-hye's impeachment, where the same number of constitutional court judges presided over the case.

Don't Ignore Han Duk-soo Impeachment

What the court should be prioritizing is the seemingly capricious impeachment of acting President Han Duk-soo. After assuming power following Yoon's parliamentary impeachment, Prime Minister Han was ousted by the opposition based on a unilateral rule imposed by the Democratic Party's parliamentary speaker.

Without a clear precedent for the required quorum and vote to impeach an acting president, Speaker Woo Won-shik decided that only a simple majority was needed to remove Han from power. In contrast, impeaching a sitting president requires a two-thirds majority in the 300-member parliament. To bypass oversight from the ruling party, Woo and the Democratic Party pushed the motion through without providing any legitimate justification.

The Constitutional Court has some serious explaining to do. Why adding another liberal justice to the bench takes priority over ruling on Han Duk-soo's constitutional petition is one of many questions it must answer.

Author: Kenji Yoshida