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Jongcheol Kim
from the fact that it is entitled to have a final say on impeachment. This is
exactly the same way in which it derived the principle of proportionality from
an overarching basic principle of the rule of law (or Rechtsstaat)
28
or Article 37
Paragraph 2 envisaged putting limitations on governmental activities.
29
In
Korea, there has been so far no serious examination of whether the principle
of proportionality is part of an invisible constitution because, as I believe, not
only the ideal of constitutional democracy pertaining to the rule of law in gen-
eral, but also the natural construction of all the relevant provisions including
Article 37 Paragraph 2 as a whole cannot help but support such understanding.
From the viewpoint of comparative constitutional law, the fact that, regardless
of a visible or invisible basis, most constitutional democracies have developed
a similar principle in whatever title which would strengthen this seemingly
unanimous understanding in Korea. The remaining issue is how and to what
extent this principle can be applied to a variety of constitutional cases.
As far as the impeachment is concerned, the judicial discretion of a balanc-
ing test can also be justified by the very ideal of constitutional democracy or a
democratic republic under which the Korean constitutional arrangement as
a whole is made up. The KCC as the constitutionally designated institution
of impeachment justice may elaborate the legal requirements. In this con-
text, the use of a balancing test is a part of elaboration or articulation of legal
reasoning. The outcome of impeachment is of constitutional importance,
so that the judicial body entrusted with the power of impeachment should
consider the constitutional causes and consequences of impeachment. For
example, the importance of the presidency as the unique representative of
the sovereign people would not accept an easy and extra-political dismissal
without the sovereign people’s consent:
On the other hand, a decision to remove the President from office would
deprive the “democratic legitimacy” delegated to the President by the
national constituents through an election during the term of the office and
may cause political chaos arising from the disruption of the opinions among
28
The principle of the rule of law may be discerned from that of Rechtsstaat, at least in terms
of its diverse ideological origins and different paths of development. However, the KCC has
used these two ideas as similar principles in their constitutional meanings by often citing them
together in the same context (e.g., “The system of impeachment against the President intends
to realize the rule of law or the principle of Rechtsstaat that every citizen is governed by law and
even a man of national power does not stand above the law [emphasis added].” Constitutional
Court Decision 2004Hun-Na1, May 14, 2004, 16–1 KCCR 632).
29
For the principle of proportionality as a standard of constitutional review in the context of
constitutional adjudication in Korea, see generally Jongcheol Kim, “The Structure and Basic
Principles of Constitutional Adjudication in the Republic of Korea” in K. Cho (ed.), Litigation
in Korea (London: Edward Elgar Publishing, 2010) 130.
Is the Invisible Constitution Really Invisible?
337
the people, that is, the disruption and the antagonism between those who
support the President and those who do not, let alone a national loss and
an interruption in state affairs from the discontinuity of the performance of
presidential duties. Therefore, in light of the gravity of the effect to be caused
by the removal of the President, the ground to justify a decision of removal
should also possess corresponding gravity.
Although it is very difficult to provide in general terms which should
constitute a “grave violation of law sufficient to justify the removal of the
President from office,” a decision to remove the President from office shall
be justified in such limited circumstances as where the maintenance of the
presidential office can no longer be permitted from the standpoint of the pro-
tection of the Constitution, or where the President has lost the qualifications
to administrate state affairs by betraying the trust of the people.
To sum up, the KCC persuasively derived an “invisible” limitation on impeach-
ment of the president from the “visible” text which states the requirements of
impeachment by way of applying the universal constitutional principle of the
rule of law into the impeachment procedure. I believe that this approach of the
KCC took the right stance in a way of applying the “invisible” constitutional
principle in Tribe’s terminology (or “visible” in my understanding) to the proper
place, and thus successfully struck the balance among constitutional powers by
preventing the legislature from exercising impeachment power abusively.
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