How will vacancies at Constitutional Court impact impeachment process?

After President Yoon Suk Yeol's unprecedented martial law declaration, the National Assembly is putting forward an impeachment motion amid growing calls for Yoon to resign.

Here’s a clear breakdown of how the process could unfold and the challenges it faces under the current circumstances.

Impeaching a president begins in the National Assembly, South Korea’s legislative body.

If the Assembly succeeds in passing the impeachment motion, with two-thirds of the seats voting for, it is then up to the Constitutional Court to make the final call.

The Constitutional Court plays a pivotal role in impeachment proceedings, as it holds the authority to uphold or reject the motion. According to the Constitutional Court Act, at least seven of the court’s nine justices must be present to constitute a quorum -- to review, discuss, and investigate the motion. For an impeachment motion to pass, six of the nine justices must vote in favor.

However, the court currently faces a significant hurdle: it is operating with only six of its nine-justice positions filled. The National Assembly has yet to elect successors for three justices who retired in mid-October, leaving the court in a precarious position.

Temporary solution: Proceeding with six justices

Despite this shortfall, the Constitutional Court has implemented a provisional solution. On Oct. 17, just three days before the justices retired, the court unanimously voted in favor of an injunction to suspend the application of the quorum requirement in the Constitutional Court Act.

The injunction had been applied for by Lee Jin-sook, the Chairperson of Korea Communications Commission, who was waiting for a ruling on her impeachment.

She argued that the article, which regulates the quorum needed for judgment, could be interpreted as unconstitutional if the seat is empty due to the justices' retirement and if the final decisions on motions could not be reached due to the vacancy.

Since Oct. 18, this decision ensured the court could continue to hear and review significant matters with six members, including a potential impeachment trial.

This would mean that under this six-member system, the impeachment process would require a unanimous vote from all six remaining justices to uphold the National Assembly’s motion to impeach Yoon. This adds an additional layer of difficulty to the impeachment’s success.

Understanding the dynamics within the Constitutional Court is crucial to anticipating potential outcomes. Acting Constitutional Court President Moon Hyung-bae and Justice Lee Im-seon, both appointed during the Moon Jae-in administration, are considered liberal. Meanwhile, the other four justices -- Kim Hyung-doo, Jung Jeong-mi, Jung Hyung-sik, and Kim Bok-hyung -- lean centrist to conservative. Notably, Justice Jung Hyung-sik is the only member appointed directly by President Yoon.

Acting Constitutional Court President Moon Hyung-bae sees that a "six-member system" is sufficient to begin an impeachment trial on President Yoon Suk Yeol over his controversial martial law decree. But he has said it would need "further discussions" on whether it is sufficient to hand down a final verdict.

If the impeachment motion moves forward, it would be one of the most significant constitutional tests in recent South Korean history. The process would also highlight the importance of addressing the ongoing vacancies in the Constitutional Court to prevent further legal ambiguities.

For now, the eyes of the nation remain fixed on both the National Assembly and the Constitutional Court as South Korea navigates this potentially pivotal moment in its democratic history.