[Inside Chodong] Law Exists Only When It Is Upheld

Disregard for the Rule of Law by State Institutions
The President's Removal Underscores the Need to Reaffirm the Foundations of the Rule of Law

The chaos and conflict that persisted for 122 days following the 12·3 Martial Law have finally come to an end. After the longest deliberation in its history, the Constitutional Court, acting as the final bastion for the protection of democracy, wisely fulfilled its role by ruling that the president had "gravely violated the Constitution and the law" and ordering the president's removal from office. However, during the impeachment crisis, the head of the executive branch, who should have been at the forefront of upholding the rule of law, failed to respect the Constitutional Court's decision and instead used it as a tool for political strife, leaving a bitter aftertaste. The problem is that this incident is not an isolated case. There have been numerous instances where not only the executive branch but also the National Assembly and the judiciary have disregarded the law and court rulings.

During the presidential impeachment process, acting presidents Han Ducksoo and Choi Sangmok failed to appoint Ma Eunhyuk as a Constitutional Court justice nominee for 40 days after the Court's unconstitutionality ruling on February 27. The Constitutional Court unanimously decided that "the failure to appoint Ma Eunhyuk as a Constitutional Court justice nominee infringed upon the National Assembly's right to elect," and reaffirmed this in the impeachment case against Acting President Han. However, that was the extent of the response. This is directly related to the "binding force" stipulated in Article 47 of the Constitutional Court Act, and not only undermined the authority of the Court's decisions but also hindered the restoration of the nine-justice system, which is tied to the diversity and stability of constitutional interpretation and the Court's rulings. Even now, unconstitutional and unlawful situations caused by executive inaction continue.

Many Constitutional Court decisions have also stalled at the threshold of the National Assembly. The National Assembly has ignored follow-up legislation for 18 cases, including the Pharmaceutical Affairs Act, the Assembly and Demonstration Act, and the National Referendum Act, for which the Constitutional Court issued "unconstitutional but non-voidance" decisions to minimize social confusion caused by legal vacuums. In particular, laws related to the "abortion ban," which the Court ruled unconstitutional in 2012 for violating pregnant women's right to self-determination, have been left adrift past the amendment deadline. In 2014, the Court decided that the National Referendum Act, which granted referendum rights only to overseas Koreans with registered domestic residency, violated the Constitution. Nevertheless, the National Assembly missed the 2015 legislative deadline and has failed to amend the law for nine years. This is so-called "legislative inaction." Furthermore, during the recent impeachment crisis, even after the impeachment trial against Acting President Han Ducksoo was dismissed (with five justices for dismissal, two for rejection, and one for acceptance), the opposition continued to challenge the Constitutional Court's decision by calling for a re-impeachment of Han for the same reasons as the dismissed case.

Yonhap News Agency

The judiciary's disregard for the law is also serious. Even judges, who are supposed to safeguard fairness and justice through the strict application of the law, have continued a self-contradictory practice of interpreting the explicit provisions of the election law, which they are bound to uphold, as merely advisory in court proceedings. Chief Justice Cho Heedae personally emphasized to judges the need to comply with the mandatory "6·3·3 principle" stipulated in Article 270 of the Public Official Election Act, but the reality is so far removed from this that the National Court Administration had to issue specific guidelines to courts at all levels. According to statistics on the handling period of Public Official Election Act violation cases, the first trial takes an average of 288 days, and the second trial an average of 240 days, far exceeding the legal deadlines. In fact, it is almost accurate to say that there are virtually no cases where the legal deadlines are observed.

The Roman jurist Cicero warned, "When the law is silent, tyranny begins." John Locke also offered the insight, "If the law is not upheld, the social contract collapses." Observing the law is the way to prevent social chaos and tyranny. I believe the Constitutional Court's decision to remove the president from office has provided an opportunity for our entire society to experience what the rule of law truly means. Through this experience, we must once again reflect on the fundamentals of constitutionalism. Regardless of one's position or status, and under any circumstances, the law must be observed; only by observing it does the law exist.