© The Author 2010. Oxford University Press and New York University School of Law.
All rights reserved. For permissions, please e-mail: [email protected].
..........................................................................................
Strategic judicial responses in
politically charged cases: East
Asian experiences
Wen-Chen Chang*
Political turmoil sometimes gives courts the opportunity to decide the fate of the top political
leadership. Such judicial decisions are difficult and easily backfire. Recently, however, the
constitutional courts in South Korea and Taiwan have rendered decisions that have resolved
political crises successfully. By examining the two cases in detail, this paper finds that both
decisions employ a strikingly similar judicial strategy. Both cases create “win-win” situations, issue a decision with a single voice, use literal interpretations, and adopt self-empowering legal doctrines. This paper argues that these features are critical to their success. In addition, the paper finds that the two political milieus were also similar. Both cases were decided
in the context of a divided government; however, the democratic commitments of the political
actors had become entrenched. The paper concludes that well-crafted judicial strategies alone
will not guarantee success, and judicial solutions, to varying degrees, are dependant on favorable political contexts and always run the risk of politicization.
1. Introduction
Political turmoil occurs and reoccurs in both young and relatively mature democracies. Highly charged political controversies challenge and test the strength of state
institutions including the courts. In 2004, the Korean Constitutional Court received
a request to decide whether to impeach President Roh Moon-Hyun after a motion to
that effect had been passed by the National Assembly.1 In 2007, in Taiwan, President
Chen Shui-Bian petitioned the Constitutional Court in that country to ask if he should
be immune from criminal investigations involving the first lady’s embezzlement of the
* Associate Professor, National Taiwan University College of Law. Email: [email protected]
1
J. Y. Interpretation No. 627 (2007). English translation is available at http://www.judicial.gov.tw/
constitutionalcourt/en/p03_01.asp?expno=627
I•CON (2010), Vol. 8 No. 4, 885–910
doi: 10.1093/icon/mor013
886 I•CON 8 (2010), 885–910
state-secrets fund.2 In both controversies, the top political leadership was paralyzed,
leaving both states on the brink of destabilization.
Both courts took on their respective cases and made decisions. The South Korean
Court decided not to impeach President Roh. The Court in Taiwan (the Republic of
China [ROC]), allowed certain investigations to proceed so long as the president’s
state-secrets privileges and presidential functions were not disturbed. Both decisions
have been complied with by the relevant political actors and neither court has faced
significant setbacks. In both countries, politics returned to normal after the judicial
resolutions. The success of both decisions seems to symbolize yet another judicial triumph for both courts3 and the possibility that courts are able to successfully deal with
highly politically charged cases.
However, what made both decisions successful judicial responses to highly politically charged cases remains to be examined further. On close examination, the
two cases share striking similarities, not only in the nature of judicial decisions but
also in their respective political contexts. This article analyzes what features, if any,
in the two decisions were critical to or even inevitable in the achievement of success. Was it because the two decisions were both issued with one voice and without
separate opinions? Was it because of particular styles of judicial reasoning in the
two decisions? Critical or not, are these features alone sufficient to guarantee the
acceptance by the relevant actors of the judicial resolutions of exceedingly controversial cases? Will such court decisions be accepted and prove capable of resolving
political crises across the spectrum of political contexts? Are there any underlying
political conditions necessary for the acceptance and observance of such judicial
responses?
As an attempt to answer the above questions, this paper is organized into two
major parts, aside from this introduction. Section 2 analyzes both cases against
their respective backgrounds, the court decisions themselves, and their aftermaths.
Section 3 examines both the legal strategies used by the courts and the political
contexts upon which the acceptance and success of the strategic judicial responses
relied and that formed the preconditions in which they took place. Section 4 is the
conclusion.
2
3
The Impeachment the President (Roh Moo-hyun) Case, 16-1 KCCR 609, 2004 Hun-Na 1, May 14,
2001. The English translation of the full decision is available at the official website of the Constitutional
Court of Korea (http://english.ccourt.go.kr/) [hereinafter Impeachment Case] For discussions of this case,
see also Youngjae Lee, Law, Politics, and Impeachment: The Impeachment of Roh Moo-Hyun a Comparative
Constitutional Perspective, 53 Am. J. Comp. l. 403 (2005); and Jonghyun Park, The Judicialization of Politics
in Korea, 10 Asian-Pac. l. & Pol’y j. 62 (2008).
Both constitutional courts have long been credited as successful constitutional institutions helping to
steer democratic transitions and guaranteeing individual rights and freedoms. See e.g., Tom Ginsburg,
Judicial Review in New Democracies: Constitutional Courts in Asian Cases (2003); and Wen-Chen Chang, The
Role of Judicial Review in Consolidating Democracy: the Case of Taiwan, 2 (2) Asia l. Rev. 73 (2005).
Strategic judicial responses in politically charged cases: East Asian experiences 887
2. Politically charged cases and strategic judicial responses
2.1. Taiwan: President Chen Shui-bian, the Red-Shirt Army, and
judicial response
2.1.1. Background
In September 2006, a group calling itself the Red-Shirt Army occupied the boulevard
in front of the presidential palace in Taipei, demanding that President Chen Shui-Bian
resign for various corrupt acts. The protest, staged for several days, eventually was
extended by weeks and months.4 Even supporters of President Chen and members of
his own party, the Democratic Progressive Party (DPP), urged him to step down to
allow the succession of Vice President Annette Lu. His presidency was seemingly paralyzed, and the DPP government almost on the brink of collapse.
Meanwhile, prosecutors in the Taipei District Court began investigating the case.
The question of the constitutional legitimacy of this investigation arose immediately,
as President Chen was accorded presidential criminal immunity under article 52 of
the Constitution.5 However, the prosecutors contended that the first lady, Ms. Wu
Shu-Chen, was suspected of embezzlement regarding a special presidential fund that
provided for the president’s undisclosed activities in connection with national security
and diplomacy. The investigation was directed at the first lady, rather than the president, and thus could not be barred by the Constitution.
In November, the first lady was charged with embezzlement. Although President
Chen was not formally charged, he was indicted as an accomplice and mentioned
throughout the pages of the prosecutorial motion. A great many details regarding
how the special fund was spent were released in the prosecutorial findings.6 Not surprisingly, motions for presidential impeachment and recall were placed on the agenda
in parliament instantly (the Legislative Yuan), where the past ruling party, the
­Nationalist Party (Kuomintang [KMT]), had never lost the majority since it came to
Taiwan after World War II.7 President Chen protested the prosecution as both unjust
4
5
6
7
The protest did not apply for a permit, and the boulevard adjacent to the presidential palace was the prohibited zone for any assembly or parade unless granted with a special permit from the city government.
The mayor, Ma Ying-Jeou, who was a potential presidential candidate for the Nationalist Party (Kuomintang, KMT), the longest ruling party before 2000, and who is now the president having assumed office in
2008, decided to tolerate the protest and issued a special permit for the protest.
Article 52 reads: “Unless the President is guilty of rebellion or treason, he shall not be liable to criminal
prosecution without having been recalled or relieved of his duties as President.” The English text of the
ROC Constitution is available at http://www.taiwandocuments.org/constitution01.htm (last visited Jan.
1, 2010).
Some identifiable Chinese dissidents’ names were also indicated in the memo as they had received money
from the special fund, which instantly caused grave concerns, if not dangers, for those dissidents.
According to Additional Article § 4 (7) of the ROC Constitution, presidential impeachment requires a
motion passed by a two-thirds vote in the Legislative Yuan and a decision by the Constitutional Court. A
recall for president, according to Additional Article § 2 (9), requires a motion by a two-thirds vote in the
Legislative Yuan and a referendum in which more than half of all eligible voters must cast votes and more
than half of the cast votes agree to recall.
888 I•CON 8 (2010), 885–910
and unconstitutional. He argued that the prosecution, even against his wife, should
have been barred by his constitutionally guaranteed immunity, and that the disclosure of details regarding the special fund was in violation of presidential privileges
and a grave encroachment upon the separation of powers.
Despite President Chen’s protest, the trial began, and the prosecutors requested that
the president and his secretary-general both release further information concerning
the use of the special fund. On January 25, 2007, on behalf of President Chen, the secretary-general filed a constitutional petition before the Constitutional Court arguing
against the prosecution. In March, an injunction request was added with respect to
the ongoing trial of the first lady at the Taipei District Court.
2.1.2. The Court’s decision
On June 15, 2007, the Constitutional Court released the decision, J. Y. Interpretation
No. 627, allowing for a very limited criminal investigation of the president so long as
presidential functions were not undermined.8 The decision was issued without separate opinions, a practice that had not happened for quite some time;9 moreover, the
Court seemed aware of the significance of handing down this ruling unanimously.10
The decision has two major parts: the first, regarding presidential criminal immunity;
and the second, concerning presidential state-secrets privilege.
2.1.2.1. Presidential criminal immunity
At the beginning of the decision, the Constitutional Court made it clear that the
presidential criminal immunity provided for in article 52 of the ROC Constitution “is
merely a temporary procedural barrier, rather than a substantive immunity from any
criminal liability on the part of the President.”11 It explained:
. . . [T]he criminal investigation authorities and the trial courts may not treat the President as a
suspect or defendant and proceed with any investigation, prosecution or trial against the President during his presidency for any criminal offense committed by him other than rebellion or
treason, provided that any measure not directly concerning the esteemed status of the presidency and
exercise of the presidential authorities, or prompt inspection and investigation of the crime scene may
still be conducted (emphasis added).12
What is noteworthy is that the Court did not completely bar criminal charges or
prosecutions—other than for rebellion or treason—against a president during his or
J. Y. Interpretation No. 627 (2007/06/05).
Ever since the beginning of the divided government in 2000, with the DPP holding the executive power
and the KMT dominating the legislative power, the Constitutional Court has received many highly controversial cases, such as J. Y. Interpretation No. 520, J. Y. Interpretation No. 585, and J. Y. Interpretation
No. 613. None of them was issued unanimously. The English texts of these cases are available at http://
www.judicial.gov.tw/constitutionalcourt/en/p03.asp.
10
However, this did not mean, necessarily, that all the justice agreed on the decision. For the Constitutional
Court to issue a constitutional interpretation, it requires two-thirds of justices to agree but those who disagree if not issuing any dissenting opinion would not appear in the record.
11
Para 2, Holding, J. Y. Interpretation No. 627.
12
Emphasis added. Id.
8
9
Strategic judicial responses in politically charged cases: East Asian experiences 889
her presidency. Instead, it allowed prosecutorial or investigatory actions against the
president so long as such actions did not interfere with esteem for the presidency and
that office’s authority or if those actions were undertaken for the prompt preservation
of a crime scene, which may be used after the president leaves office. The Court distinguished between purely procedural matters and investigatory actions. The former,
such as court registration of criminal charges filed by prosecutors or by individuals
against the president, were allowed.13 Regarding the latter, the Court ensured that
no detention or search, inspection or examination, of the president’s person would
be allowed during his or her presidency. If necessary, however, searching particular
places, which may be associated with the president, for the purpose of arresting any
particular individual or for seizing specific objects or electronic records, would be
allowed.14
The remaining critical issue is who will decide, in particular situations, if it is
­necessary to pursue permissible investigative measures, and how to prevent presidential
esteem and authority from being undermined. The Court assigned the primary duty
to the legislature and, not surprisingly, a supplementary role to the courts. It stated:
[T]he legislative branch should formulate additional provisions regarding the President in
­respect of the restrictions on the places to be searched, the grounds on which the President
may reject the search or seizure, as well as the specific procedures for judicial review and objections.”15
Meanwhile, given that no such legislative provision was available, the Court
directed that a five-judge special tribunal of the High Court be formed, which would be
vested with the exclusive power to review the adequacy and necessity of searches and
seizures of places, objects, or records concerning the president. Prior to the legislative
enactment of the necessary provision, the Court stated that, except with the consent
of the president, no searches or seizures could be conducted without an affirmative
ruling from this special tribunal; further, the president’s office and residence should
not be searched.16
Ostensibly, the controversy was not about criminal charges or investigatory actions
directed against the president. The charge was directed at the first lady, albeit with the
strong implication that the president had acted as an accomplice. In response, the
Court stated that presidential criminal immunity “does not extend to the evidentiary
investigation and preservation directed at him [the president] during the investigation or trial for a criminal case involving another person.”17 The Court, nevertheless,
asserted that any such criminal investigations involving the president as a witness
The Court’s illustration: “[f]or instance, the prosecutor may accept and register a case filed under criminal complaint, information, or transfer, and the court may do the same for a case filed under private
prosecution.” Para 4, Reasoning, J. Y. Interpretation No. 627.
14
Id. Para 5, Reasoning,
15
Id.
16
The Court also directs the relevant provisions of the Code of Criminal Procedure to be applied mutatis
mutandis if the procedure is to be conducted before the legislative enactment. Id.
17
Id. Para 6, Reasoning,
13
890 I•CON 8 (2010), 885–910
in the case of another person must show respect for the presidency and apply the
relevant procedures to that effect.18 If, during such an investigation, the president is
suspected of having committed a crime, further investigative measures can only be
undertaken in accordance with the rules laid down by the Court.19
2.1.2.2. Presidential state-secrets privilege
If the opinion, discussed thus far, reads in disfavor of the president, the second part of
the holding on presidential state-secrets privilege does just the opposite. In this part,
the Court began by characterizing the president as the chief executive,20 despite the
fact that past decisions have never recognized this point; it remains fairly controversial whether the system of government is, by nature, parliamentary, presidential,
or semipresidential.21 Without addressing any of the underlying debates, the Court
asserted:
[U]nder the principles of separation of powers and checks and balances, the chief executive
should have the power to decide not to disclose any classified information regarding national
security, defense and diplomacy based on the functions and authorities intrinsic to his office.
Such power is part of the executive privileges of the chief executive.22
Such privilege, the Court noted, is not only affirmed by the Constitution but has
also been granted under the State Secrets Protection Act, which gives the president
the power to classify state secrets, unilaterally, on a permanent basis.23 However, the
president was reminded that such a privilege is not absolute, and its exercise should be
in accordance with the principles of separation of powers.24
Based on the presidential state-secrets privilege, the Court reasoned that presidents
should have the right to refuse to testify on certain matters or to produce any relevant
Id.
Id.
20
A better translation would be “head of government” as distinguished from “head of state.” While a president is both head of state and head of government in a presidential system, he or she is merely head of
state in parliamentary system, where the prime minister serves as head of government, that is, the chief
executive. In a semipresidential system, a president is head of state and, while it is debated, also serves as
head of government with certain powers granted exclusively to him.
21
The KMT has long defined the government system as parliamentary reflecting its strong hold on the parliamentary majority. The DDP, in contrast, has preferred to see the current system as presidential or at
least semipresidential, especially after the party won the presidency. The Constitutional Court has never
been given a clear indication regarding this issue. See Chang, supra note. There appears to be no majority
consensus in the circle of constitutional scholars in Taiwan. While a semipresidential system is supported
by many, a parliamentary or presidential system is also endorsed by a significant group of scholars.
22
Para 8, Holding, J. Y. Interpretation No. 627. Following this assertion, a list of provisions regarding the
president’s powers, such as acting as commander in chief, promulgating law and regulations, concluding treaties, among others, is provided by the Court. This list, however, does not resolve the questions
regarding the powers exercised by the president, and whether the power is merely ceremonial, as in a
presidential system, or substantial, as in parliamentary one.
23
Articles 7-I (i) and 12-I of the State Secrets Protection Act. See id. Para 9.
24
Id. Para 9.
25
Id. Para 10.
18
19
Strategic judicial responses in politically charged cases: East Asian experiences 891
documents regarding state secrets in any criminal proceedings involving themselves
or any others. Still, the more pivotal issue, again, is who will decide if the information a president refuses to provide actually relates to state secrets; further, by what
procedure, if any, will such decisions be made. Similar to its treatment of presidential
criminal immunity, the Court assigned to the legislature the task of making the necessary laws that would direct the special tribunal to decide such disputes.
The Court noted, nevertheless, that “[i]f the President has justified in writing that
the relevant testimony or production of evidence is likely to jeopardize national interests, the prosecutor and the court should give such justification due respect.”25 If the
pertinent information likely concerns national interests, only prosecutors or trial
judges are allowed to examine such information, and it must be conducted in confidential proceedings. The Court gave a final reminder to the lower courts that, in case
of doubt, the rational standard of review should apply, and that due regard must be
given to national security interests.26
2.1.3. Aftermath
After the decision, a five-judge special tribunal was formed; however, it has never
received a request to give a decision regarding the types of disputes discussed above.
President Chen expressed his disagreement with the Court but vowed to show his
­respect. Regarding the special fund, he classified some but not all of the documents
as relevant. The KMT was not pleased by the decision; however, it announced that it,
too, would respect the judicial decision and began revising the State Secrets Protection Act, which is still in process, at the time of writing. The trial of the first lady began
in the fall of 2007. Partly due to being in poor physical condition and confined to a
wheelchair, and partly in protest, she did not appear at the trial.27
However, by then, the focus was quickly turning to the legislative elections to be
held in January 2008 and the presidential elections in March. The KMT won both
elections. When President Chen stepped down in May, the trial had already begun and
was awaiting his testimony. He has been in detention since November 12, 2008.28
The verdict of the trial court declared both Chen and his wife guilty of embezzlement
and sentenced them to life in prison. The case was appealed and is now pending at the
High Court.
It should also be noted that after the release of this decision, eight justices left the
Constitutional Court when their terms expired in September 2007. Four of the eight candidates nominated by President Chen were singled out by the KMT, either because of
their past service in the DPP government or because of support for independence-minded
Id. Para 10. The final part of the decision was concerned with the application by President Chen for an
injunction against the trial of the first lady. As the Court already made the ruling, it was no longer necessary to decide on the injunction. Id. Para 12.
27
Later, however, she made her appearance in court after the mounting pressures from the DPP in fear of
losing elections in 2008.
28
As of this writing, he is still in detention, awaiting trial in the High Court.
26
892 I•CON 8 (2010), 885–910
associations. They were eventually rejected by the KMT-dominated legislature.29 The
KMT also refused to fill four vacancies till President Chen had left office. After the KMT
president assumed office, he quickly filled the four judicial vacancies.
2.2. South Korea: President Roh Moon-Hyun and the impeachment
case
2.2.1. Background
On March 12, 2004, an impeachment motion against President Roh Moon-Hyun
was passed by the National Assembly. It caused a destabilizing effect, instantly, since
the Constitution stipulates that, in this event, the office of the president is to be suspended pending a final decision rendered by the Constitutional Court.30 Angry citizens
staged large street rallies for days and nights. Before the impeachment motion, a poll
had indicated that President Roh was losing popularity. After the motion, however,
he appeared to have regained popular support while the congressional alliance that
passed the impeachment motion appeared to be losing support.31
When President Roh was inaugurated in February 2003, he was perceived as a
reform-minded, popular leader. His own party, the Millennium Democratic Party
(MDP), however, did not have a majority in the National Assembly. The conservative
Grand National Party (GNP) was in firm control of Congress and rendered President
Roh’s every move on policy changes difficult, if not impossible. Worse still, an internal
party struggle caused President Roh to drift further from the MDP. He eventually left
and formed his own party, the Uri Party, in September 2003.32 The coming congressional election in 2004 intensified interparty competition. Any initiatives that President Roh made, including a referendum on his own standing with the public, was
fiercely attacked, and he was accused of partisanship in giving his open support to
the Uri party in the coming legislative election.33 It was also found that illegal contributions were made to his presidential campaign, and that his close associates were
linked to corruption charges.
The four candidates were equally, if not more, qualified as the other four. In fear that some of its legislators might not comply, the KMT allowed only those legislators who vowed to obey the party preference to
vote for the four preferred nominees.
30
Sec. 3, article 65, of the Republic of Korea Constitution reads that [a]ny person against whom a motion
for impeachment has been passed is suspended from exercising his power until the impeachment has
been adjudicated.
31
Lee, supra note 2, at 412; Tom Ginsburg & Zachary Elkins, Ancillary Powers of Constitutional Courts, 87
Tex. l. Rev. 1431, 1451 (2009).
32
The struggle between former President Kim Dae-Jung and President Roh with their respective followers
became so intense as to make this party split inevitable. Lee, id.
33
Barred from seeking a second term (article 70 of the Constitution), Korean presidents, in theory, need
not take any partisan stands in elections though, in practice, they often do so for the sake of their party’s
legislative elections. Although no constitutional provisions require Korean presidents to stand neutral
between political parties, the Constitutional Court in the subsequent decision on President Roh’s impeachment confirmed such a requirement based upon article 7 (1) of the Constitution that requires all
public officials shall be servants of the entire people. See infra note 44 and accompany text.
29
Strategic judicial responses in politically charged cases: East Asian experiences 893
Amid the various political confrontations, the GNP and the MDP were able to
pass an impeachment motion against President Roh, which required and obtained a
two-thirds vote of the members in the National Assembly.34 The grounds for his impeachment included three charges: first, his contempt of national laws by his openly
partisan support for the Uri Party; second, the corrupt acts of his associates and
illegal campaign contributions; and third, his disruption of the national administration
by proposing a personal vote of confidence in the form of a national referendum.35
Over President Roh’s protests, the motion was sent for a decision by the Constitutional
Court. In addition to his denial of all substantial charges, he also raised the contention
that he had not received due process protection since there had been no opportunity
to express his position before the National Assembly.
2.2.2. The Court’s decision
Two months later, on May 14, 2004, the Constitutional Court decided not to impeach
President Roh.36 The decision was issued en banc, with a note at the end of the decision
explaining that, in the view of the Court, separate opinions must not be included in the
impeachment adjudication.37 The substance of the decision covered four main issues.
The first related to the legality of the National Assembly’s impeachment motion. The
second issue concerned the nature of the impeachment, while the third concerned
the charges of constitutional and legal violations by President Roh. The last though
Sec. 1, article 65 of the Constitution.
Three accounts are summarized by the Court. See the Court’s Reasoning, 1, Impeachment Case.
36
For a short summary of the case, see Constitutional Court, The Twenty Years of the Constitutional Count
of Korea 290–292 (2008).
37
The Court’s Reasoning, 7 B, Impeachment Case. The Court notes that “Article 34(1) of the Constitutional Court Act provides that the deliberation at the Constitutional Court shall not be disclosed to the
public, whereas the oral argument and the pronouncement of the decision shall be disclosed. Here, nondisclosure of the deliberation by the Constitutional Court Justices means that neither the separate opinions of the individual Justices nor the numbers thereof shall be disclosed, as well as the course of the
delib­eration.” However, the Court states that “[i]t should be noted that, concerning the above position,
there was also a position that separate opinions may be pronounced and disclosed in the decision, interpreting Article 34(1) of the Constitutional Court Act as a provision merely providing for non-disclosure
of the deliberative proceedings in that only the external proceeding or the content of the opinions exchanged therein to reach the conclusion should not be disclosed.” Obviously, there were different opinions regarding at least one issue on the constitutionality of President Roh’s initiative of a referendum
that was also involved in this case. When President Roh first brought up this initiative to the National
Assembly in 2003, several legislative members regarded it as an unconstitutional act and filed a constitutional complaint to the Constitutional Court. Five justices dismissed this case on a procedural ground
stating that the opinion expressed by President Roh was not yet constituted as a public official act for
review. Four justices, however, contended that the Court should have ruled on the merits and that the
act by President Roh was unconstitutional. Based on the Constitution, however, any ruling for unconstitutionality requires six votes of all nine judges. The case was then dismissed. See The Case of Referendum
for Asking Citizens’ Confidence in the President, [15-2(B) KCCR 350, 2003 Hun-Ma 694 et al., Nov. 27,
2003]. The English translation of the full decision is available at the official website of the Constitutional
Court of Korea (http://english.ccourt.go.kr/) For an short summary of the case, see Constitutional Court,
The Twenty Years of the Constitutional Count of Korea 329–331 (2008).
34
35
894 I•CON 8 (2010), 885–910
certainly not the least important issue was whether President Roh should be
impeached and removed from office.38
On the first issue, the Court basically showed deference to the National Assembly
with respect to the process the legislature chose in adopting the impeachment motion.
Thus, the contention made by President Roh in arguing that he had not been afforded
due process was rejected.39 The second and the third issues are interrelated, as the
Court defined impeachment as an issue of an entirely legal nature.40 I shall discuss
them together in the following section before analyzing the last, and most significant,
part of the decision concerning the standard of review.
2.2.2.1. The legal nature of impeachment and President Roh’s violations
The Court first identified the legal basis for the impeachment motion. Article 65 of
the Constitution states “[i]n case the President, . . . hav[ing] violated the Constitution
or other laws in the performance of official duties, the National Assembly may pass
motions for their impeachment.”41 Thus, for the Court, the purpose and function of
this impeachment adjudication lay in
reinforcing the normative power of the Constitution by holding certain public officials legally
responsible for their violation of the Constitution in exercising their official duties. Article
65 . . ., memorializing a discerned position that even the President elected by the public and
thereby directly endowed with democratic legitimacy may be impeached in order for the preservation of the constitutional order . . . , and mandates the Constitutional Court to take charge of the
impeachment adjudication, thereby indicating that the purpose of the impeachment system
lies . . . “not for political grounds but for violations of law.”42
After defining the adjudication of an impeachment motion as a legal matter, the
Court went on to explain what “performance of official duties” denoted. According
to the Court, the acts of the president, in exercising his/her official duties, are not
limited to acts delegated or based on statutes, orders, or regulations (legal acts) but
also extend to acts (factual acts) such as visiting places, opening events, broadcasting
through media, or attending official dinners. Both types of acts could be examined in
the course of adjudication, to ascertain if they entailed legal or constitutional violations.43 The Court also defined “the Constitution or statutes” thus:
the “Constitution” here includes the unwritten constitution formed and established by the prece­
dents of the Constitutional Court as well as the express constitutional provisions; the ‘statutes’
include not only the statutes in their formal meaning, but also, for example, international treaties
that are provided with the same force as statutes, and the international law that is generally
approved.44
40
41
42
43
44
38
39
The Court’s Reasoning, 3.4.5.6., Impeachment Case.
The Court’s Reasoning, 3., Impeachment Case.
The Court’s Reasoning, 4.5., Impeachment Case. See also, Lee, supra note.
Sec. 1, article 65 of the Constitution.
Emphasis added. The Court’s Reasoning, 4., Impeachment Case.
Id.
Emphasis added. Id.
Strategic judicial responses in politically charged cases: East Asian experiences 895
This expansive reading of article 65 was not accompanied by any explanation. The
Court then examined the charges alleging that President Roh had committed legal
or constitutional violations. With respect to President Roh’s open support for his Uri
Party and remarks about the coming election, the Count found these to be in violation
of the Constitution and the laws, as the sitting president is obliged to maintain political
neutrality.45 While recognizing his freedom of expression, the Court weighed the president’s “ultimate noticeability” and the significance of his office and maintained that
“the President should restrain himself . . . from expressing his or her opinions towards
party politics when exercising duties as the head of the state or the chief executive.”46
Next, the Court discussed the constitutional violations of President Roh. First, it established
the president’s obligation to abide by and uphold the Constitution.47 On this basis, the Court
found that the president’s disregard of the decision by the National Election Commission that
ruled against his violation of election laws was “against the principle of government by the rule
of law and is in violation of the obligation to protect the Constitution.”48 In a similar vein, the
president’s initiative to hold a national referendum on public confidence in his own administration was also found to violate the Constitution, since article 72 of the Constitution does not
provide for this kind of initiative.49
However, not all charges were found to violate the Constitution or to be illegal.
President Roh’s disregard of the opinions of the National Assembly was not deemed
as such, as it was still within the “legitimate exercise of his authority within the separation of powers structure under the Constitution.”50 The charge of receiving illegal
campaign contributions was also dismissed, since President Roh, at the time, was
merely a candidate and no instances of corruption committed by his close associates
were found to be linked to the president.
The last charge by the National Assembly against President Roh was that his
­unfaithful performance and reckless administration had caused political chaos and economic collapse.51 Here, the Court made a distinction between the obligation to perform
This duty, as the Court states, is derived from “Section 1, Article 7, of the Constitution; the principle of
free election set forth in Section 1, Article 41, and Section 1, Article 67, of the Constitution; and the equal
opportunity among the political parties guaranteed by Section 1, Article 116 of the Constitution.” In addition, relevant provisions in the Public Officials Election Act demand a similar obligation for the president.
The Court’s Reasoning, 5., Impeachment Case.
46
Id.
47
Articles 66 (2) and 69 of the Constitution. The former requires that “[t]he President has the responsibility
and duty to safeguard the independence, territorial integrity, and continuity of the State and the Constitution.” The latter prescribes the oath of the President: “[t]he President, at the time of his inauguration,
takes the following oath: I do solemnly swear before the people that I will faithfully execute the duties of the
President by observing the Constitution, defending the State, pursuing the peaceful unification of the homeland,
promoting the freedom and welfare of the people, and endeavoring to develop national culture.”
48
The Court’s Reasoning, 5 C., Impeachment Case.
49
Article 72 of the Constitution reads: “[t]he President may submit important policies relating to diplomacy, national defense, unification, and other matters relating to the national destiny to a national referendum if he deems it necessary.” The Court’s Reasoning, 5 D, Impeachment Case.
50
Id.
51
The Court’s Reasoning, 5 E., Impeachment Case.
45
896 I•CON 8 (2010), 885–910
faithfully his official duties and the obligation to uphold the Constitution. The former,
according to the Court, cannot be “normatively enforced” and thus cannot be “a subject matter for a judicial adjudication.”52 Given article 65(1) limiting the ground for
impeachment to constitutional or legal violations, the Court thus dismissed the final
charge. In sum, the Court upheld only three charges against the president as legal
and constitutional violations; namely, his partisan stand for the Uri Party in the congressional election, his disregard of the decision by the National Election Commission,
and, finally, his initiative in seeking a referendum on public confidence in his administration.53
2.2.2.2. The standard of review for impeachment: Gravity and proportionality
Thus far, the opinion, as discussed, does not appear to favor President Roh. Why,
then, did the Court decide not to allow him to be impeached? The most salient factor
in influencing the judicial decision is the standard the Court adopted in assessing “the
gravity of violations.”
The Court established this standard based on article 65 (4), which provides that
“the effect of the decision of impeachment is limited to the removal of the public official
from office,” as well as article 53(1) of the Constitutional Court Act, which states that
the “Constitutional Court shall issue a decision removing the public official from office
when there is a valid ground for the petition for impeachment adjudication.”54
The Court admitted that one possible literal interpretation of the above wording
(“a valid ground”) is that “the Court shall automatically issue a decision removing
the public official from office as long as there is any valid ground for impeachment set
forth in Article 65(1) of the Constitution.” However, the Court continued:
. . . under such interpretation, the Constitutional Court is bound to order removal from public
office upon finding any act of the respondent in violation of law without regard to the gravity
of illegality. Should the respondent be removed from his office for any and all miscellaneous
violations of law committed in the course of performing his official duties, this would be against
the principle of proportionality that requests constitutional punishment that corresponds to the
responsibility given to the respondent. Therefore, the existence of the valid ground . . . means
the existence of a “grave” violation of law sufficient to justify removal of a public official from his
or her office and not merely any violation of law. [emphasis added].”55
The next step the Court took was to weigh “the degree of the negative impact on and
the harm to the constitutional order” caused by president’s violation of the Constitution and the laws against “the effect to be caused by the removal” of the president from
Id. The Court also notes that “[w]hether the President has faithfully performed his official duties may
become the object of the judgment by the public at the next regularly held election. However, under the
current Constitution that limits the presidential term to a single term, there is no means to hold the President directly responsible, even politically, let alone legally, toward the public and the President’s faithfulness or unfaithfulness in performing his or her official duties may only be politically reflected favorably or
unfavorably on the ruling party of which the President is a member.”
53
The Court’s Reasoning, 6 C (1), Impeachment Case.
54
The Court’s Reasoning, 6 A, Impeachment Case.
55
Emphasis added. Id.
52
Strategic judicial responses in politically charged cases: East Asian experiences 897
office.56 The Court stated that the presidency was “extremely significant as the head
of the state and the chief of the executive, representing the public will directly vested
with the democratic legitimacy.”57 Thus, to justify the removal of the president from
office, there must have been such a grave violation of law that this consideration outweighed the significance of the role of the presidency and the effects occasioned by the
president’s removal. In developing the essence of what would constitute such a grave
violation of law, such as to warrant the removal of the president prior to the expiry
of his or her term, the Court reasoned from “the basic order of free democracy”58 and
“public trust vested with the President.”59 The Court had to consider valid grounds for
the removal of the President on
. . . the essential content of the constitutional order [as] ultimately protected by the impeachment adjudication process, that is, the “basic order of free democracy.” . . . Accordingly, a “violation of law significant from the standpoint of protection of the Constitution” requiring the
removal of the President from office means an act threatening the basic order of free democracy. . .
. An “act of betrayal of the public’s trust” is inclusive of other patterns of act than a “violation
of law significant from the standpoint of protection of the Constitution,” and, as such, typical
examples thereof include bribery, corruption and an act manifestly prejudicing state interest.
[emphasis added]”60
Thus, for the Court, valid grounds for the removal of the president must be limited
to instances where either “the maintenance of the presidential office can no longer
be permitted from the standpoint of the protection of the Constitution, or, where
the President has lost the ability to administer state affairs by betraying the trust of
the people.”61 After the Court applied this standard to the constitutional violations
committed by President Roh, it found that none of his actions constituted such grave
violations as to threaten the basic constitutional order. The partisan stands and his
disregard of the National Election Commission decisions were “made with no affirmative intent to stand against the basic order of free democracy,” nor were there any acts
of such grave violations as to warrant removal.62 President Roh’s initiative in seeking,
unconstitutionally, a confidence referendum was merely a proposal and, accordingly,
exerted no grave negative impact upon the constitutional order. Thus, the Court conclusively rejected the impeachment motion.
The Court’s Reasoning, 6 A, Impeachment Case.
Id.
58
For the Court, the basic order of free democracy is “constituted of the basic elements of the principle of
government by the rule of law which are ‘respect for basic human rights, the separation of powers, and
the independence of the judiciary,’ and of the basic elements of the principle of democracy which include
‘the parliamentary system, the multi-party system, and the electoral system.’ ” Id.
59
As the Court reasons from the standpoint of “public trust,” it states “that the President is an institution
representing the public’s will directly vested with democratic legitimacy through election, a valid ground
for impeaching the President can be found only when the President has lost the public’s trust by the act
of violation of law to the extent that such public trust vested in the President should be forfeited while the
presidential term still remains.” Id.
60
Emphasis added. Id.
61
Id.
62
Id.
56
57
898 I•CON 8 (2010), 885–910
2.2.3. Aftermath
As indicated earlier, the congressional motion to impeach President Roh was motivated, partly, by partisan competition regarding the election in April 2004. On April
15, the election was held. With an unexpected rise in popularity, perhaps due to
President Roh’s impeachment, the Uri Party won the parliamentary majority. The
conservative GNP became the minority but remained the second largest group in the
National Assembly.63 After the Constitutional Court decided not to impeach President
Roh on May 14, the popularity of both President Roh and the Uri Party increased but
was short-lived.
For the remaining three years of his presidency, President Roh’s administration
faced fierce challenges from the GNP as well as other political parties and never became popular again. Certain policies that he might have considered pursuing as
­reformist measures, such as the relocation of the national capital, remained fairly
controversial and were found inconsistent with the Constitution.64 Hence, it was not
surprising that the conservative GNP won the presidential election at the end of 2007
and the National Assembly elections in 2008. The GNP has had a strong grip on both
the executive and legislative branches ever since.
After leaving office, President Roh—along with key figures of the Uri Party—faced
corruption charges and prosecutorial investigations. South Korean society was
greatly surprised when he committed suicide in May 2009 by jumping off a cliff near
his residence.
3. Analyzing judicial responses and the underlying political
contexts
The two cases discussed above exhibit striking similarities. Not only did both societies
encounter highly charged politics pertaining to similar issues but the respective judicial responses also shared certain features. Most importantly, the two decisions ended
political crises, successfully, and the Courts themselves did not experience a political
backlash. In effect, the decisions by the courts normalized the heightened politics that
had paralyzed the presidential leadership, with the result that both presidents were
able to complete the remainder of their terms.
However, it remains to be examined further why the two decisions were able to
resolve such highly political controversies. In what follows, I identify four salient
The Uri Party obtained 152 seats of the 299 seats in the National Assembly. The GNP obtained only 121
seats. The MDP was hit the worst, with only 9 seats. The data is available at http://www.ipu.org/parline-e/
reports/arc/2259_04.htm.
64
For example, The Relocation of the Capital City Case, 16-2(B) KCCR 1, 2004 Hun-Ma 554, October 21,
2004 (holding that as the location of state capital has become part of the unwritten constitution, the
change of it requires measures amounting to constitutional amendment); The Treaties on Relocation of
the U.S. Military Base Case, [18-1(A) KCCR 298, 2005 Hun-Ma 268, Feb. 23, 2006] (dismissing, however, the individual complaint in this case as the relocation has not, as yet, directly affected the redistricting or fundamental rights or freedoms of the residents).
63
Strategic judicial responses in politically charged cases: East Asian experiences 899
features exhibited in the two judicial decisions and assess whether they constituted
critical strategies for the successful resolution of the crises. Next, I address the underlying political contexts within which the two judicial decisions were situated. I argue
that the relative maturity of the two new democracies and the democratic commitments made by all the relevant constitutional institutions were the most critical political foundations of—and perhaps preconditions for—the peaceful judicial resolution
of the issue. As pivotal as they are, strategic judicial decisions alone cannot account
for their acceptance by all relevant public actors.
3.1. Features of strategic judicial responses
The four salient features in the two judicial decisions include, first, creating a “winwin” situation; second, issuing the decision unanimously; third, using literal interpretations based on nothing but the text; last but not least, adopting self-empowering
legal doctrines.
3.1.1. Creating a “win-win” situation
Both decisions were masterpieces in creating win-win situations. In J. Y. Interpretation No. 627, Taiwan’s Constitutional Court did not bar, completely, any investigatory measures against the president, thereby satisfying both the Red-Shirt Army and
the KMT legislature. At the same time, however, it affirmed that President Chen, as
the chief executive, was possessed of presidential state-secrets privileges, which may
be invoked when investigations are in process.
As a matter of fact, win-win situations were also created with respect to every
subissue arising in this decision. For instance, the Court held that the president is not
immune to criminal procedures in cases involving others (specifically, the first lady);
nevertheless, it warned prosecutors to show high respect to the presidency and not to
undertake measures that will compromise presidential functions. Even with regard
to the presidential state-secrets privilege, the Court maintained that prosecutors or
trial court judges could argue that the relevant materials were not, by nature, “state
secrets,” despite presidential characterization as such, before a special five-judge tribunal. Most fascinating is the win-win situation created between the judiciary and the
legislature. By drawing many detailed lines so as to create win-win situations between
different political parties and between the president and prosecutors, the Court inevitably deferred to the legislature in stating the need for new laws. Yet it quickly added
that, in the absence of such laws, the details of the procedure to be followed could
be set by the Court. Evidently, the Court itself is the biggest winner in this win-win
situation by reserving both the supplementary lawmaking power and the power of
ultimate dispute resolution to itself.
The adjudication regarding impeachment by the South Korean Constitutional
Court created similar win-win situations. While the Court decided not to impeach
President Roh, it confirmed, unambiguously, several charges brought up by the
National Assembly against him. President Roh’s partisan stand with respect to
900 I•CON 8 (2010), 885–910
impending congressional elections, his disregard of the decision by the National Election Commission, and, most notably, his plan to call for a public vote of confidence in
his administration were all found by the Court to be constitutional violations. These
findings, in fact, occupy most of the pages of the decision.65 Hence, President Roh’s
opponents easily can find a basis for justifying their passage of the impeachment
motion, even if they were discontented with the Court’s final decision. The only difference between their motion and the Court’s decision is the standard of gravity, which
was unknown to them, with respect to the seriousness of such acts. In this sense, the
impeachment motion was not completely unjustifiable or defeated. The Court not
only saved the remainder of President Roh’s term but it also saved the face of the partisan National Assembly.
In win-win situations, everyone obtains some portion of what he or she desires,
just not all of it. It should be made clear that a decision to create win-win situations
does not mean that it is ambiguous. Neither decision, discussed here, was ambiguous.
In Taiwan, the Court allowed investigations against President Chen and his wife to
continue, provided presidential functions were not undermined. In South Korea, the
Court decided not to impeach President Roh, and he was reinstated. It is of critical
importance for courts not to be ambiguous in creating win-win situations. Also, the
courts must clearly separate the different “wins” of the different parties. Thus, in both
decisions—perhaps, more so in the Taiwanese decision—the courts drew on detailed
distinctions with regard to the various issues in order to provide some satisfaction to
all parties concerned.66 If parties were not sure about which issue they won and which
lost, they would not know what step to take next and so could remain in an impasse.
The strategic judicial response must provide clear guidance for all the parties precisely
so they will know where their options lie.
3.1.2. Giving decisions with a single judicial voice
Both decisions were released without concurring or dissenting opinions. Both courts
seem conscious of the importance in presenting their decisions unanimously. The
­Korean Constitutional Court even included two paragraphs at the end of the decision
to explain that issuing an impeachment decision without releasing separate opinions
is required by law, even if the individual judges held different views.67
It is clear, perhaps for all courts, that a judgment issued without dissent increases
the weight of the judicial decision and can prevent distortions or distractions caused
by the presence of concurring or dissenting opinions. More importantly, unanimous
decisions shield the preferences of individual judges and internal judicial deliberations
from the public. Because no separate opinions are available, no one outside the Court
The Court’s Reasoning, 3.4.5.6., Impeachment Case.
The creation of win-win situations in both cases has much to do with the employment of interests balancing (in Taiwan) and the grave standard (in Korea), which involve varying degrees of judicial scrutiny.
I shall deal with this issue later. For now, however, it should be noted that varying degrees of judicial
scrutiny do not always create win-win situations.
67
See supra note 36 and accompanying text.
65
66
Strategic judicial responses in politically charged cases: East Asian experiences 901
can identify the connections between the opinions of individual judges and their open
or hidden political stands.68 While sometimes criticized as lacking judicial transparency or accountability,69 the practice of not issuing separate opinions can prevent further politicization of judicial opinions, particularly when dealing with highly sensitive
cases. Marbury v. Madison70 and Brown v. Board of Education71 were typical single-voice
decisions by the United States Supreme Court, where the chief justices chose not to
yield to any pressure to issue separate opinions in times of heated political controversy.72
Also noteworthy is the fact that the tradition of unanimity is shared by many
constitutional courts in Europe. Most constitutional courts, there, have not permitted
the issuance of separate opinions.73 While some have departed from this tradition,
many of them, in practice, still deliver the decision of the majority without separate
opinions.74 A good many new constitutional courts, although influenced by the European tradition, nevertheless permit the issuance of separate opinions and regard this
as a matter of providing judicial transparency and as a healthy sign of constitutional
democracy. The Taiwanese and Korean constitutional courts are no exception. The
number of separate opinions has increased with the progress of the democratic transition, giving rise to many high profile cases.75 All this renders the single-voice character of this decision highly noteworthy, both in Taiwan and in South Korea.
The single voice is particularly critical to the creation of win-win situations. This is
because such results are all too easily read as unprincipled compromises, both legally
and politically. If concurring or dissenting judges write separate opinions to refute
some of the so-called wins in bitter or harsh tones, it will clearly undermine the legitimacy or even undercut those wins as well as the entire decision. All too often writing
A recent and growing body of empirical studies, particularly in the United States, has demonstrated a
predictable link between judges’ decision making and their political stands, as based on the judges’ appointments by the Republican or Democratic Party. However, there are other studies arguing that such a
direct link does not always appear in judicial decision making. See Lee Epstein & Segal a. Jeffrey, Advice and
Consent: The Politics of Federal Judicial Appointments (2005); Cass Sunstein, David Schkade, and Lisa Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 Va. L. Rev. 301 (2004).
69
Edward C. Voss, Dissent: Sign of a Healthy Court, 24 Ariz. St. l. j. 643, 645 (1992); Robert Post, The
Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decision-Making in the
Taft Court, 85 Minn. l. Rev. 1267 (2001).
70
Marbury v. Madision, 5 U.S. (1 Cranch) 137 (1803).
71
Brown v. Board of Education of Topeka (Brown I), 347 U.S. 483 (1954).
72
See, e.g., Frank B. Cross & Stefanie Lindquist, The Decisional Significance of the Chief Justices, 154 u. Pa. l.
Rev. 1665 (2006).
73
The oldest constitutional court of the world, the Austrian Constitutional Court, for example, has never
permitted the issuance of separate opinions. Constitutional courts of Italy, Romania, and many other
European countries share this tradition. The German Constitutional Court permitted the issuance of separate opinions only in 1971. Donald p. Kommers, The Jurisprudence of the Federal Republic of Germany 31
(1989).
74
For instance, despite the allowing of separate opinions, over 90 percent of the decisions by the German
Constitutional Court were issued without one. Kommers, id. at 31.
75
Ginsburg, supra note 3. In Taiwan, the Constitutional Court did not allow the issuance of separate opinions till the 1980s. The number of separate opinions issued, since the late 1980s, has risen and reached
a peak with the recent Court. Chang, supra note 3.
68
902 I•CON 8 (2010), 885–910
separate opinions in a decision that creates or attempts to create win-win situations
politicizes or renders it futile. Bush v. Gore is a typical example.76 Had the decision been
issued with a single voice, the win-win situation it created—a liberal stand on equal
voting rights and a conservative stand on how electors should be chosen—might
have sounded much more reasonable and helped to generate greater legitimacy and
less criticism.77
Perhaps Taiwan’s Constitutional Court knows this better than any other court.
Ever since the political branches of government were divided between competing political parties in 2000, the Court has rendered a number of decisions that attempted
to provide win-win situations for both executive and legislative branches.78 However, with many separate opinions leaning toward one side or the other, these
­majority opinions could not be cast in neutral tones or avoid being labeled as partisan compromises.
Why was the Court able to achieve unanimity this time? The timing is the key. Just
three months after the decision, the chief justice together with seven other justices
would retire from the bench.79 By the end of September 2007, President Chen would
have to nominate another eight justices, to be confirmed by the KMT legislature.
If the Court could not uphold its institutional credibility, it would undermine not only
the political stability of the state but also the institution of the Court itself. Seen in this
way, the Court actually had no choice but to speak with one voice.80
531 U.S. 98 (2000). While it was a five-to-four decision on the issue regarding the congressional power
in deciding electors’ vote, it was a six-to-two decision regarding the failure of ballots based upon equal
voting rights. Most media, however read, it only as a five-to-four decision simply because of the harshtoned conflicts between the opinions on this score. Regarding the impact of media on this decision, see
Laurence H. Tribe, Gore v. Bush: Through the Looking Glass, in Bush v. Gore: The Question of Legitimacy
39–67 (Bruce Ackerman ed., 2002).
77
Focusing on different parts of the decision and the different separate opinions, scholars are likely to have
different stands on the decision. For instance, Charles Fred regards the Bush v. Gore decision as quite
reasonable, not at all surprising from the standard point of past doctrines. Owen Fiss also considers it as
primarily principled. In contrast, Jed Rubenfeld and Guido Calabresi regard it as an unprincipled decision
while scholars like Steven Calabresi argues the Court should have deferred to political solutions. See Bruce
Ackerman ed., Bush v. Gore: The Question of Legitimacy (2002).
78
For example, in J. Y. Interpretation No. 520, regarding the question of whether the executive could unilaterally suspend the ongoing construction of a nuclear power plant, the Court decided that the executive could make such a decision, but at the same time, the legislature must be consulted as it held the
co–decision-making power. Similarly, in J. Y. Interpretation No. 585, regarding whether the legislature
could set up an independent commission with quasi-executive and quasi-judicial powers to investigate a
gunshot that occurred one day before the presidential election in 2004, the Court decided that the legislature could set up such a commission so long as it remained subordinate to the legislature and did not
possess executive or judicial powers.
79
It was the result of the constitutional revision in 1997. In the past, the Constitutional Court had about
seventeen justices with a renewable term of nine years. For example, before leaving office in September
2007, Chief Justice Weng Yueh-Sheng had served more than thirty-five years on the Court. The 1997
revision gave rise to a staggered, nonrenewable term of eight years for justices that began in 2003.
80
However, the Court’s institutional integrity experienced certain political setbacks during the confirmation process, as discussed later.
76
Strategic judicial responses in politically charged cases: East Asian experiences 903
3.1.3. Using literal interpretation based on nothing but the text
Perhaps not coincidently, neither decision relied, directly, on foreign constitutions,
laws, cases, jurisprudence, or any other international documents. While neither
courts has any record for heavy foreign and international law citations,81 the complete omission of any legal sources other than domestic constitutional provisions is
still quite exceptional. For one thing, both cases involve unprecedented, complicated
legal issues, where it would be only natural for any jurist to seek foreign precedents
or jurisprudence for legal assistance. For another, the rules or standards employed
in both decisions are, in varying degrees, considerably reminiscent of certain foreign
cases or scholarly writings.
Take the impeachment decision, for example. The Court hastened to define the
nature of the impeachment as purely legal, based upon the wording of article 65.82 From
the perspective of comparative constitutional law, however, a good many constitutions
have the same or similar wording, and that does not preclude impeachment from being
defined as political and treated as a matter to be decided, solely, by a parliament. As a
matter of fact, most constitutional jurisdictions—having constitutional courts or parliaments as final arbiters—might have considered presidential impeachments as primarily
political.83 Had there been any separate opinions released in this decision, we would
have witnessed intense debate. However, the Court shielded both the parties and, most
importantly, the Korean citizenry from access to the debate within the Court. It allowed
only one authoritative answer based on the absolute power vested in the Court as a single
institution in both interpreting the Constitution and ending the present controversy.
While limited to a very literal interpretation of domestic constitutional provisions,
the rules and standards stated in the two decisions are under the discernible shadow
of foreign jurisprudence. The gravity/proportionality standard used in the Korean
decision reads as similar to many American scholarly writings discussing the House
impeachment of the U.S. president Bill Clinton.84 The criminal investigation against
For discussion of the infrequency of Korean courts referring to international and foreign laws, see e.g.
Keun-Gwan Lee, From Monadic Sovereignty to Civitas Maxima: A Critical Perspective on the (Lack of) Interfaces between International Human Rights Law and National Constitutions in East Asia, 5(1) Ntu l. Rev. 155
(2010); and Suk Tae Lee, South Korea: Implementation and Application of Human Rights Covenants, Mich. j.
Int’l l. 705 (1993). For discussion of Taiwan, see e.g. Wen-Chen Chang, An Isolated Nation with Globalminded Citizens: Bottom-up Transnational Constitutionalism in Taiwan, 4 (3) Ntu l. Rev. 203 (2009).
While reference to international or foreign laws in both jurisdictions is infrequent, it is noteworthy that
the references were more frequent during their respective democratic transition periods and in recent
years. See Chang, id; and Ginsburg, supra note 3, at 139–140, 226–227.
82
Article 65 states “[i]n case the President, . . . hav[ing] violated the Constitution or other laws in the performance of official duties, the National Assembly may pass motions for [his] impeachment.”
83
See, e.g., Jody c. Baumgartner & Naoko Kada ed., Checking Executive Power: Presidential Impeachment in Comparative Perspective (2003) (discussing presidential impeachments in more than seven constitutional jurisdictions that do or do not have constitutional courts); and Bruce Ackerman, The Case Against Lameduck
Impeachment (2003).
84
Keith E. Wittington, Bill Clinton was no Andrew Johnson: Comparing Two Impeachments, 2 u. Penn j.
Const. l. 422 (2000); Frank O. Browman and Stephen L. Sepinuck, “High Crimes and Misdemeanors”:
Defining the Constitutional Limits on Presidential Impeachment, 72 s. Calif. l. Rev. 1517, 1532 (1999);
and h. Lowell Brown, High Crimes and Misdemeanors in Presidential Impeachment 120–123 (2010).
81
904 I•CON 8 (2010), 885–910
President Chen in Taiwan is strongly reminiscent of United States v. Nixon,85 along
with many other American cases involving the criminal or even civil liabilities of presidents.86 In fact, during the deliberation process, the Court convened meetings with
experts to inform itself on foreign jurisprudence relating to presidential criminal immunity, state-secrets privileges, and the relevant procedures in criminal laws.87 Interestingly, the decision itself did not refer to the foreign jurisprudence, which the experts
consulted had brought to the attention of the Court.88
Evidently both courts understood the pivotal advantage in relying on nothing but
the texts of their respective constitutions; this narrowed the site of what was being
contested. The issues facing both courts were already very challenging, and there was
certainly nothing to be gained in engaging in methodological disputes. Nevertheless,
it is striking that both decisions relied on a single constitutional provision, article 52
in Taiwan, article 65 in South Korea. They declined—at least in any explicit terms—
even to consult any other domestic interpretive sources; namely, other constitutional
provisions, constitutional structures, government systems, constitutional histories, or
the intents and purposes of the constitutional drafters. The attempt to narrow the field
of contested normative authorities is certainly understandable, and that strengthened
the Court’s decisional authority. However, the strategy undertaken might have been
extreme, running the risk of losing persuasiveness.89 After all, it is one thing to be able
to exhibit the Court’s authority by relying on a very few legal documents. It is another
to be able to sustain the persuasiveness of such pivotal decisions. What both courts
faced was an unprecedented constitutional question with huge political impact. The
complexity of the issues involved, the persuasiveness of how these were resolved, and
the arguments serving this end certainly would have required extensive discussions
based on more—rather than fewer—legal authorities.
3.1.4. Adopting self-empowering legal doctrines
That legal doctrines, by nature, are judicially self-serving and self-empowering has
long been pointed out by the school of critical legal studies.90 Legal doctrines are as
418 U.S. 683 (1974).
For a collection of impeachment-relevant cases and documents, see M. E. Kuo ed., Impeachment: An
Overview of Constitutional Procedures and Practices (2003).
87
The author was summoned by the Court in February 2007 to provide a memo regarding relevant issues
in the United States Constitution and Supreme Court cases.
88
It should be noted that the Court cited one precedent, J. Y. Interpretation No. 388, which also involved
presidential criminal immunity in article 52. But the case was rather simple having no resemblance with
the current case. It was brought to the Court when the first direct presidential election was about to take
place, and the question was regarding whether a sitting president, while at the same time a presidential
candidate, is still protected by presidential criminal immunity.
89
They are even, to some extent, arbitrary. Yet for both courts, arbitrariness is beside the point. As both
courts understood, what was required was the exercise of their decisional authority to put an end to the
overcharged politics rather than their delicate jurisprudential reasoning.
90
See e.g. robert Unger, The Critical Legal Studies Movement (1986), and Mark Tushnet, Following the Rules
Laid Down: A Critique of Intepretivism and Neutral Principles, 96 Harv. l. Rev. 781 (1983); and Paul Brest,
Interpretation and Interests, 34 Stan. l. Rev. 765 (1982).
85
86
Strategic judicial responses in politically charged cases: East Asian experiences 905
much contested politically as they are legally. Recent positive political theories
inform us that legal doctrines may be useful to test judicial neutrality or partisanship
by examining whether courts follow legal doctrines.91 However, the pertinent studies
quickly show that judicial observance of legal doctrines does not necessarily tell us
much, since liberal or conservative conclusions may be derived from the same legal
doctrines.92 For any national supreme or constitutional court, the constraining power
of legal doctrines is even less effective, if not entirely futile, because such courts have
the ultimate power to decide the law, including articulating alternate legal doctrines
in future cases. The litmus test for any apex court regarding its observation of legal
doctrines—which are often its own creation—lies not in the present but in the future
and, more likely, not in the legal arena but in political battle.
It is, thus, not surprising that, faced with such controversial cases, both the
Korean and the Taiwanese courts sought refuge in legal doctrines that could be read
as objective and in as abstract terms as possible. Of all the governing institutions, only
the courts are empowered directly by legal doctrines. This being so, the Court adds no
additional winning or losing political players to the task of resolving disputes. So long
as the political actors are more or less balanced vis-à-vis each other, they are less likely
to care if the judiciary is self-serving or self-empowering. Any imbalance along these
lines is likely to generate a crisis or political setback for the courts. The classic case of
Marbury v. Madison, in early American constitutional history, turned, precisely, on
achieving a delicate political balance so as to empower the Court to create its own
judicial review powers.93 Both the Korean and Taiwanese courts understand this.
For the Korean Court, in pondering impeachable constitutional violations committed by the president, it sought assistance from the legal doctrine of “gravity/proportionality.” However, both the concept of “gravity” and the weighing of the interests
involved were to be decided, ultimately, by the Court, not the National Assembly.
In addition, the Court relied on the concept of “a basic order of free democracy”—as
an integral component of the standard of gravity—to develop the standard of what
constitutes an impeachable constitutional violation. Again, once an issue is defined
as or according to a legal term, it falls into the solemn hands of the Court. Similarly
in Taiwan, the Court drew a line demarcating the permissible investigatory measures
against the president. While deferring to future legislation, the Court wasted no time
in pointing out that the line must be determined by the judiciary in each concrete dispute. The same reasoning was also evident when dealing with the presidential statesecrets privilege. Both the concept and the substance of this privilege were left, finally,
for the courts to decide, while still giving the president, the legislature, and even the
prosecutors some say in the process.
See, e.g., Linda Cohen & Matthew L. Spitzer, Judicial Deference to Agency Action: A Rational Choice Theory and an Empirical Test, 69 s. Calif. l. Rev. 431 (1996).
92
See, e.g., Sunstein et al, supra note 68.
93
See, e.g., Bruce Ackerman, The Failure of Founding Fathers: Jefferson, Marshall and the Rise of Presidential
Democracy (2005) [hereinafter “Failure of Founding Fathers”] (providing the political context in which
Marbury v. Madison is understood as submissive to contested politics and balancing between the losing
Federalist and the winning Republicans).
91
906 I•CON 8 (2010), 885–910
All courts develop legal doctrines that are self-empowering, judicially. When faced
with highly political cases, courts are even cautioned to empower no one but themselves. Risks come, certainly, when the courts act in a self-serving manner, and they
must stay vigilant and watch for political backlash, which might undermine their
future legitimacy and role within the constitutional order.
3.2. Political contexts of the two strategic judicial responses
As the foregoing analysis shows, the four features identified above were critical to the
acceptance and success of the Taiwanese and Korean judicial solutions to presidential
crises. The first two are, perhaps, even more critical than the last ones. Critical or not,
would these particular judicial strategies alone suffice in guaranteeing the successful judicial resolution of these difficult cases? Could they succeed in all political contexts?94 It is important to look further into the respective political contexts in which
the two decisions were situated. As the following will show, the two judicial decisions
were situated in largely similar political contexts.
3.2.1. Divided government and the political status quo
Both cases occurred in contexts where the branches of government were divided
­between different political parties. In Taiwan, President Chen faced a hostile KMTdominated legislature from the outset of his presidency in 2000. While no such
motion was made, officially, he had to face legislative rhetoric calling for impeachment throughout his presidency. Political hostility intensified during his second
term after a gunshot incident occurred, one day before the election, which the KMT
believed was designed to manipulate public sentiment and to facilitate the president’s
reelection. When the Red-shirt Amy staged street protests and demanded his resignation in 2006, President Chen faced an extremely hostile political environment.
Similarly in Korea, when President Roh was inaugurated in 2003, the National
Assembly was dominated by the conservative GNP that boycotted his major policies.
As a matter of political strategy, President Roh fought for a friendly legislature. Thus,
he formed his own Uri Party and campaigned hard so that it would win the 2004
parliamentary election. President Roh’s support for the Uri Party was perceived as a
huge threat to the GNP, MDP, and other major political forces in the parliament, with
the result that these parties, in turn, cooperated in passing the impeachment motion
again President Roh.
Political hostilities often—though not always—trigger judicial interventions.95 The
impeachment motion was sent to the Constitutional Court for adjudication in accordance with the Korean Constitution. In Taiwan, it was through the petition of President
With respect to my thinking about political context, I would like to thank Tom Ginsburg for sharing his
thoughts and a paper on “The Politics of Courts in Democratization: Four Moments in Asia”; a paper
presented at the Constitutional Court of Korea, December 2009.
95
See, e.g., Ginsburg, supra note 3; and Ran Hirschl, Toward Juristocracy: The Origins and Consequences of
the New Constitutionalism (2004).
94
Strategic judicial responses in politically charged cases: East Asian experiences 907
Chen that the Constitutional Court became involved. While the Korean Court had to
take the case, the Taiwanese Court would have had ways to evade the issue; however,
it chose to stay involved. Both courts understood what the political stakes were and
appreciated that, while they must (in the case of South Korea) or were expected
(in the case of Taiwan) to hear such politically charged cases, as institutions with neither purse nor sword, they were not allowed to affect what was at stake, in the sense
of changing the political status quo.
On close examination, the two decisions did not change the political status quo
in either Taiwan or Korea. The impeachment adjudication in Korea was rendered a
month after the Uri Party had become the majority in the National Assembly, and
President Roh had already regained his popularity. In a significant way, President
Roh was “reinstated,” as it were, by his own political campaigning. The Court did not
decide his political fate. President Roh fought for this. Had the Court not been aware of
that and stepped in too far, impeaching the president, it truly would have shifted the
course of politics. Indeed, if it had done so, the Court would have influenced not just
the political fate of President Roh but the long-term political stability of Korea as well.
The Court in Taiwan also preserved the political status quo. During the Red-Shirt
Army street demonstrations in September 2006, only one-and-a-half years remained
to President Chen’s second term. Despite the strong charges against him, the KMT had
neither sufficient votes nor the political determination to pass any recall or impeachment resolutions. The next parliamentary and presidential elections were scheduled
in less than a year, and the KMT expected to win both elections. Given the political
circumstance, the Court would have made a huge mistake if it had failed to provide
constitutional protection to the president who would soon complete his tenure. The
first lady did not need equivalent protection. Delicate as the matter seemed, what the
Court decided was merely to affirm the line the Constitution had already drawn in
protecting a sitting president from persecution as a political figure at too early a stage.
3.2.2. Democratic commitments and judicial institutional constraints
Fortunately, there was no military intervention in either case. Nor was any king or
queen giving instructions to the courts.96 Although the presidential leadership was
paralyzed and the government seemingly destabilized, no major courses of development, politically and economically, were altered. What the situations showed were
signs of healthy and strong constitutional democracies in both South Korea and
Taiwan.
When the two cases were heard, it had been nearly two decades since Korea and
Taiwan had undergone the process of democratization.97 Taiwan already had experienced three direct presidential elections while South Korea had held four. Major political parties had won and lost elections; sometimes, they split or became united after
That was what happened to Thailand. See, e.g., Borwornsak Uwanno, Economic Crisis and Political Crisis
in Thailand, 4 (3) Ntu l. Rev. 141 (2009).
97
Ginsburg, supra note 3; Chang, supra note 3.
96
908 I•CON 8 (2010), 885–910
winning or losing elections.98 The basic rules of the game, nevertheless, were observed
in both countries—democratic elections.99 In a constitutional democracy, courts must
recognize their roles in solemnly respecting, not changing, the result of democratic
elections undertaken in accordance with the rules. Courts would be terribly mistaken
in thinking they could be asked to “decide” political leadership, or “pick up,” where it
had been relinquished. Neither of the cases examined here did that. The institutional
role of courts is to preserve, until the next election, a presidential leadership democratically chosen in accordance with the existing rules of the constitution.100
In both cases, each court not only understood this but the political parties also
understood the democratic commitments they had made. Rather than perpetuating
endless judicial games, they turned quickly to what they should be concerned with:
democratic elections. This is the most critical commitment within a constitutional
democracy, to which courts play a preserving role. Fortunately, the two courts acted
within their institutional constraints and did not attempt to interfere in the politics of
the day. They remained vigilant about the changing political situations while holding
onto a clear understanding of their limited role. Perhaps poorly crafted, nevertheless,
the single-voice opinion that employs nothing but the legal text indicates the courts’
most determined will to stay within the law yet not to step into the politics.
3.2.3. Politicization of the judiciary and judicialization of politics: Inevitable
effects?
However, there was a more severe political backlash in Taiwan than in South Korea.
Despite the legal craft displayed in delivering a win-win decision, the Constitutional
Court in Taiwan still faced immediate politicization with respect to its new appointments. With eight justices leaving by the end of September 2007, the KMT legislature
confirmed only four nominees. It boycotted the other four—including one former
Supreme Court female judge—on partisan and erroneous grounds.101 Worse still,
the KMT was not willing to observe the constitutional calendar that required filling
the four vacancies but, manipulatively, left it to the next president.102 This political
revenge certainly left a scar on the Court’s institutional integrity and credibility. However, this was not for the first time. Years earlier, when the Court decided that the
The reconfiguration occurred more often in Korea than in Taiwan. See, e.g., Chung-Si Ahn, Transformation of South Korea Politics and Prospects for Democratic Consolidation, in Politics and Economy of Regime
Transformations: Case Study of South Korea and Central European Countries 23–40 (Chung-Si Ahn & ChonPyo Lee eds., 1999).
99
Juan J. Liz & Alfred Stepan, Problems of Democratic Transition and Consolidation: Southern Europe,
South America and post-Communist Europe 15–21 (1996).
100
Ackerman, Failure of Founding Fathers, at 258–262.
101
The KMT’s accusation against the four nominees was largely based upon either their prior service to the
DPP government or their connections with independence-minded groups. To make sure the boycott was
successful, the KMT allowed only certain legislative members to vote on the confirmation, which also
generated constitutional concerns but were not brought up to the Court.
102
When the KMT president assumed office in 2008, he immediately appointed four justices with a quick
confirmation by the KMT legislature. However there were serious concerns about the personal integrity
of certain individual justices.
98
Strategic judicial responses in politically charged cases: East Asian experiences 909
parliamentary investigatory commission enjoyed only very limited power in the gunshot incident that happened one day before President Chen’s election,103 it also confronted a setback: the legislature cut judicial salaries. The Court had to issue another
decision to restore the amount of its salaries.104
No matter what Hans Kelsen envisaged, the nature of modern constitutional courts
is political.105 As if adjudication of constitutional disputes is not political enough, other
ancillary powers of modern constitutional courts, such as dissolving political parties
or impeachment, are that much more “political.”106 Some scholars even go so far as
to claim that all the highest courts are, in essence, political or, at least, constrained
primarily by high-level constitutional politics.107 Political or legal, the politicization
of the judiciary, particularly in relation to judicial appointments, has become apparent, if not inevitably, in almost all constitutional jurisdictions, including Taiwan and
South Korea. However, the French model, which forms the basis for appointing justices to the Korean Constitutional Court, seems better—particularly in a highly political, overcharged context—than the American model, followed by the Taiwanese
Constitutional Court.108 Both processes are equally politicized, yet the French model
does not require cooperation between the president and the parliament, while the
American model engenders constitutional impasses if the two cannot agree. That is,
precisely, the cause for the politicization of the judiciary in Taiwan.
However, courts can rescue themselves from the prospect of severe politicization by
not stepping into politics too frequently or gratuitously. Both courts seemed to have
understood this, and, perhaps, the Taiwanese Constitutional Court understands this a
bit better. In the context of a divided government, the Constitutional Court in Taiwan
has entered into the substance of disputes rarely. Instead, it tries to facilitate political dialogues.109 Similarly in South Korea, after the impeachment decision, while the
Korean Constitutional Court, at one time, had gone so far as to define the national capital
as part of unwritten constitutional customs,110 it quickly learned it had overplayed its
hand and correctly retreated.111 The political nature or political situation of both these
J. Y. Interpretation No. 585 (2004). English translation is available at http://www.judicial.gov.tw/
constitutionalcourt/en/p03_01.asp?expno=585
104
J. Y. Interpretation No. 601 (2005). English translation is available at http://www.judicial.gov.tw/
constitutionalcourt/en/p03_01.asp?expno=601
105
See also Park, supra note 2 (arguing the nature of a constitutional court as an institution is political, and
the Korean Constitutional Court was functioning precisely as such).
106
Ginsburg & Elkins, supra note _.
107
Terri j. Peretti, In Defense of a Political Court (1999); and Ackerman, Failure of Founding Father.
108
In South Korea, the Constitutional Court is composed of three justices chosen by the Supreme Court, three
by the National Assembly, and the rest by the president. However, the president of the Constitutional Court
is appointed by president with the consent of the National Assembly. In Taiwan, all fifteen justices are appointed by the president with parliamentary consents. See Ginsburg, supra note 3; Chang, supra note 3.
109
See Jiunn-Rong Yeh, Democracy-Driven Transformation to Regulatory State: The Case of Taiwan, 3(2)
Ntu Law Review 31 (2008).
110
Relocation of the Nation’s Capital Case, 16-2(B) KCCR 1, 2004 Hun-Ma 554 et al., Oct. 21, 2004. (invalidating an act to remove the capital to the south, as it required a public referendum, being a part of
unwritten constitutional customs). See also Park, supra note 2.
103
910 I•CON 8 (2010), 885–910
courts is such that they will continue to face many political cases; it will be institutionally prudent on their part not to step too deeply into high politics. As the two courts
have done for quite some time, now, they should continue to maintain their excellent
record in ensuring individual rights and freedoms while facilitating political dialogue
between political actors.
4. Conclusion
It is often alluring for courts to be given the opportunity to decide the fate of top political leadership or that of a current political regime when dealing with politically
charged controversies or contested electoral disputes. As constrained legal institutions, however, courts are better advised not to be seduced by such opportunities.
In 2004, the Korean Constitutional Court was asked to decide whether to impeach
President Roh after a motion had been passed by the National Assembly. In 2007,
the Constitutional Court in Taiwan was petitioned by President Chen, the then sitting
president, to ask if he should be constitutionally protected from criminal investigations involving the first lady’s embezzlement of his special state secret fund. In both
cases, the courts rendered decisions. The South Korean Court decided not to impeach
President Roh. The Court in Taiwan allowed certain investigations to proceed so long
as the President’s state secret privilege and presidential functions were not disturbed.
Both decisions have been observed and neither court faced significant political backlash. The two cases seemed to symbolize the triumph of judicial intervention in highly
politically charged controversies.
Having carefully examined the two cases under discussion, this article concludes
that the two decisions employ similar judicial strategies in responding to the politically charged environment in which the cases were heard. Both cases created win-win
situations, received a unanimous decision, employed literal interpretations based only
on the text, and adopted legal doctrines that were self-empowering. This article argues
that these strategies are critical in ensuring the acceptance of judicial responses in
cases of this sort, and, indeed, the first two methods, arguably, are even indispensible.
More importantly, it is reasonable to assume that judicial strategies alone were
not enough to guarantee the successful resolution of the disputes. Situated in similar
political contexts, both decisions actually maintained the political status quo and
respected the political processes. Even more critical was the favorable political milieu
of a consolidated democracy without which even the most perfectly crafted judicial
strategies would not assure successful implementation. The findings, here, must serve
as a warning or, at least, a reminder to all courts that venture to decide politically
charged cases. Not only must their legal skills be finely crafted, but the courts must
stay vigilant in evaluating the strength of the democratic commitments shown by the
other political actors in their particular contexts.
The Administrative Center Case, 17(B) KCCR 481, 2005 Hun-Ma 579 (consolidated), Nov. 24, 2005
(dismissing the case, when President Roh changed the earlier plan regarding the capital, proposing to
move only several ministries to the south). See also Park, supra note 2.
111