REUTERS-The South
Korean court that will rule on the impeachment of President Park Geun-hye has
only one precedent and little in the law books to go by, and several
legal
experts said it will have wide discretion in deciding if she is fit to remain
in office.
Seven of nine
experts interviewed by Reuters said they believed the Constitutional Court's
yardstick in deciding whether Park should remain in office would be less than
the "beyond a reasonable doubt" standard for criminal trials, making
it more difficult for her to win the case.
South Korean
law does not specify the standard needed by the Constitutional Court to reach a
ruling. It calls for criminal procedural law to be applied during an
impeachment trial "at a level that does not clash with the nature of a
constitutional trial".
Experts say
this means that the Constitutional Court has discretion on deciding which part
of criminal procedure it will apply, including whether to use a rigorous level
of proof, a lower standard, or apply a rigorous standard for some deliberations
and a lower standard for others.
Two experts,
however, said a high standard would be needed to establish grounds for
upholding impeachment.
Park, 64, was
impeached by parliament last month over an influence peddling scandal. If the
nine-judge Constitutional Court rules that she did allow a friend to have
influence over state affairs, as alleged, and that it was an impeachable
offence, she will be ousted, making her South Korea's first democratically
elected leader to be forced from office.
"This is
not a criminal trial, it's a constitutional trial deciding whether a president
is no longer fit to carry out presidential duties," said Noh Hee-bum, a
lawyer who worked as a Constitutional Court research judge from 1998 to 2015.
"Although
it's not expressly stipulated in law, it is the prevailing view that the level
of proof is not as severe."
That, some
experts said, would make it more difficult for Park.
"The
common view, a lower burden of proof, is comparatively unfavorable to Park than
a higher burden of proof would be," said Koh Moon-hyun, a professor at the
Soongsil University College of Law.
Park has
repeatedly denied any wrongdoing and her lawyers have argued that the case
should be thrown out.
"In an
impeachment proceeding, proof beyond a reasonable doubt is needed," her
lawyer, Lee Joong-hwan, said in court on Tuesday, citing a publication by the
research institute attached to the Constitutional Court.
"We can
see that this means a rigorous level of proof is needed based on evidentiary
principles of criminal procedure," he said.
The
parliament's impeachment committee and its legal counsel, who are the
prosecutors in the case, could not immediately be reached for comment.
Two sessions
of the trial have been held this week and Park did not attend, as expected. Lee
said he believes she will not appear, barring special circumstances. The court
can take several months to deliver a ruling.
FRIEND AND HER
DAUGHTER
Park is accused
of violating her constitutional duty by allowing her friend Choi Soon-sil to
wield undue influence over state affairs and colluding with her to pressure big
businesses into making contributions to foundations and enterprises backed by
Choi.
Choi is in custody
as she undergoes criminal trial for abuse of power and fraud, while her
daughter, 20-year-old equestrian competitor Chung Yoo-ra, has been detained by
police in Denmark and faces extradition proceedings after being charged with
"committing economic crime" in South Korea.
Both have
denied any wrongdoing.
In South
Korea's only previous presidential impeachment, the Constitutional Court
overturned a 2004 parliamentary impeachment of then-President Roh Moo-hyun.
The 2004 case
mainly involved Roh's public comments supporting a political party as an
election loomed, which the court said violated a law requiring government
officials to be politically neutral but was not serious enough to warrant
impeachment. The judges voted 6 to 3 to overturn that motion.
In that
decision, the court cited five examples of grounds for impeachment, and experts
said the impeachment committee is likely to argue in favor of at least three of
them in Park's case - "acts of corruption," "harming the
national interest" and "violating the people's basic rights".
As the only
precedent, the Constitutional Court is expected to closely adhere to the logic
of the 2004 ruling - especially on what constitutes grounds for impeachment,
experts said.
Lee In-ho, a
professor at Chung-Ang University School of Law, said although the level of
proof required to convince the judges was not expressly spelled out in law, a
high standard would be needed.
"In 2004,
the Constitutional Court ruled that if facts do not verify that the president
directed, abetted or otherwise unlawfully participated in the act in question,
it is not grounds for impeachment," Lee said. "I believe the judges
will decide that a rigorous level of proof similar to a criminal trial is
needed."
For the
impeachment to stand, at least six of the nine judges must rule in favor of it.
The terms of
two of them are set to expire soon - one on Jan. 31 and the other on March 13 -
potentially leaving just seven judges, the minimum required. If the case goes
past March 13, that could work in Park's favor because the number of judges
needed to uphold impeachment remains at six.
Unlike in
2004, each judge's decision will be made public.
REUTERS
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