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Constitutional Court and investigative agencies: A shocking reality

Published: 12 Mar. 2025, 00:03

Ko Jung-ae

The author is the editor-in-chief at the JoongAng Sunday.

“I never imagined our state institutions were at this level.”

A former prosecutor confided this sentiment over drinks, and I found myself in agreement. Indeed, many of the decisions made by state institutions throughout President Yoon Suk Yeol’s emergency martial law declaration on Dec. 3, 2024, his subsequent impeachment, the ensuing investigations and the legal proceedings have been difficult to justify.

Of course, the primary responsibility for this crisis lies with President Yoon. His belief that a sitting president could unilaterally invoke martial law in peacetime was astonishing. Even more shocking was his remark just before his arrest: “What’s the point of finishing my remaining two and a half years in office?” Politics carries a Sisyphean burden — one must push the boulder uphill even while knowing it will inevitably roll back down. If Yoon failed to grasp this fundamental reality, he was never suited for politics to begin with.

A protester holding Korean and American flags roams around the Constitutional Court in Jongno District in central Seoul on March 10. [YONHAP]

That said, the Democratic Party (DP) is hardly blameless. The underlying chaos — jurisdictional conflicts over investigative authority, impeachment maneuvers and legislative overreach — was largely of its own making. The DP’s aggressive moves seemed aimed at ensuring Lee Jae-myung could contest the next presidential election before the Supreme Court ruled on his case.

While everyone preaches the need to “accept the outcome,” no one actually pledges to do so. The deepening of this crisis owes much to the role of state institutions, which appear more preoccupied with serving their own interests than upholding the integrity of the nation.

Take the Constitutional Court, for instance. Early on, I wrote that the court itself was also on trial. Unlike the presidential impeachment trial eight years ago, this crisis, though triggered by Yoon’s missteps, was not solely of his making. I had hoped the justices would strive for greater persuasion, wisdom, and prudence.

Yet, recent decisions suggest those were not their priorities. Four justices ruled that the chairman of the Korea Communications Commission committed offenses serious enough to warrant removal — despite only being in office for a few days. The court mandated a return to a nine-justice panel instead of the current eight and effectively nudged the National Assembly to amend the eligibility requirements for a petition, which the legislature promptly did. This was judicial self-preservation at its finest. Meanwhile, the Constitutional Court ruled that the Board of Audit and Inspection’s oversight of the National Election Commission was unconstitutional, seemingly driven by institutional solidarity — both bodies are constitutional institutions. The fact that the Election Commission had long exploited this constitutional status to operate in an unaccountable manner was conveniently ignored.

Most troubling was the court’s delay in ruling on the impeachment of the acting president — a decision crucial for national stability. With the DP having already withdrawn its sedition charges, the matter was no longer complex.

The 55th Guard Corps blocks investigators from entering the presidential residence in Yongsan District, central Seoul on Jan. 3. [NEWS1]

Given these prior rulings, even if the impeachment of President Yoon was legally sound, the court's credibility was bound to suffer. Procedurally, the handling of the case has been so flawed that critics, including former Board of Audit and Inspection Chairman Choi Jae-hyung, have remarked, “If the Constitutional Court had a higher court above it, this case would be overturned.” Was this truly a wise course of action?

The exterior of the Corruption Investigation Office for High-ranking officials on Jan. 22. [YONHAP]

The prosecution, the Corruption Investigation Office for High-ranking Officials (CIO), and the police have fared no better. According to fellow journalist Lim Chan-jong, investigative authority over the sedition case should have been in the hands of the police, followed by the prosecution and lastly the CIO. Yet, in the end, the least competent agency grabbed hold of it. Rushing to arrest and detain Yoon, they failed to conduct a proper investigation, triggering controversy over “judge shopping” and ultimately leading to the court’s revocation of his detention. The prosecution had been warned in advance about the risks, but institutional rivalry blinded them.

As a result, the political atmosphere has grown even more toxic. Whatever ruling the Constitutional Court delivers, it is now destined to be criticized. The judiciary and investigative agencies have turned into institutions where decisions are assessed — and berated — based on ideological leanings. The future remains uncertain. Worse still, if the Constitutional Court removes Yoon from office, the judiciary may later dismiss the prosecution’s case on procedural grounds, as warned by figures like Choi Jae-hyung and Kim Woong. While the police or a special prosecutor could reinvestigate and reindict him, the ensuing chaos would be unimaginable. And what if, as some constitutional scholars suggest, the courts cast doubt on the sedition charge itself?

There was a time when we believed Korea had reached a certain level of institutional maturity. We were mistaken. At a moment of national crisis — when state institutions should have acted with the utmost integrity and foresight — they instead operated at the level of self-serving organizations. Institutions led by some of the nation’s most elite minds have exacerbated the crisis instead of resolving it. It is a profoundly disheartening reality.

Translated using generative AI and edited by Korea JoongAng Daily staff.