—Yoomin Won, Associate Professor at Seoul National University School of Law
On December 3, 2024, the ghost of martial law, which had been thought to have disappeared, reappeared after 45 years, haunting the people like a nightmare. The constitutional power to demand the lifting of martial law — a safeguard in the 1987 Constitution — was exercised effectively.[1] Over the past two weeks, efforts have been made to restore democracy. Citizens took to the streets, protesting despite the freezing weather, waving K-pop light sticks. Now, President Yoon Suk-yeol faces charges of insurrection and impeachment. This post provides a brief overview of these events and the related issues.
Emergency Martial Law Declared on Night of 3 December 2024
At 10:28 PM, President Yoon Suk-yeol suddenly declared martial law on air. Soon after, lawmakers and citizens began gathering at the National Assembly. Approximately 1,900 policemen blocked entry, preventing anyone from entering. Some lawmakers resorted to climbing over the walls to gain access. At 11:25 PM, the Chief of the Army Park An-Su was appointed as martial law commander, and Martial Law Decree No.1 was announced right after. Around midnight, more than 200 military soldiers entered the National Assembly grounds by helicopter. The building was barricaded by staff members, who gathered items to block the doors. Soldiers broke the windows on the second floor and entered around 12:45 AM. Inside, the soldiers confronted the staff members, who responded by spraying fire extinguishers. This entire process was broadcast live on regular television channels, YouTube online streams, and personal social media. Amid the chaos, enough lawmakers arrived to meet the quorum. At 1:01 AM, they demanded a vote to lift martial law, and the motion passed. Of the 300 members, 190 were present, and all 190 voted in favor of lifting martial law. Soon after the vote, the soldiers began leaving the building. At 4:27 AM, the president appeared on air and confirmed that martial law would be lifted after deliberation by the State Council.[2] At 4:30 AM, the State Council officially adopted the resolution to lift martial law. The six-hour-long martial law was lifted. That night, it is reported that more than 1,700 martial law troops were mobilized and stationed at the National Assembly and various offices of the Election Commission.
Legal Problems of the Emergency Martial Law Declaration
Article 77 of the South Korean Constitution provides that the president may proclaim martial law in times of war, armed conflict, or similar national emergency. There is another requirement that it is needed to cope with a military necessity or to maintain public safety and order by mobilization of the military forces. There are two types of martial law: emergency martial law and security martial law. President Yoon declared emergency martial law, which is the highest level of emergency power in the Korean Constitution. Article 2 of the Martial Law Act explains that emergency martial law can be declared when there is belligerency or serious disturbances of social order that considerably impede the performance of the administrative and judicial functions of the state.
The martial law declared on December 3 does not appear to meet the constitutional requirements for such a declaration. In his proclamation, President Yoon briefly explained that since the beginning of his administration in May 2022, the National Assembly had initiated 22 impeachment motions against high government officials and prosecutors. He accused lawmakers of paralyzing both the judiciary and executive branches through these impeachment motions and budget cuts. Yoon explained that the declaration of emergency martial law is to eradicate pro-North Korean forces and protect the liberal democratic order. However, South Korea was not at war, in armed conflict, or facing internal unrest at that moment. The government and judiciary were functioning effectively, and there was no military necessity to use force to maintain public safety and order. Therefore, it is difficult to argue that the declaration of emergency martial law aligns with the substantive requirements of the Constitution. The procedural requirements are also in question. The president must notify the National Assembly of a martial law proclamation without delay,[3] which did not occur. The declaration and termination of martial law must be referred to the State Council for deliberation,[4] and acts of the president, including military affairs, shall be executed in writing, countersigned by the Prime Minister and the members of the State Council concerned.[5] No document or minutes of the State Council’s deliberation exists, and the deliberation is known to have lasted only five minutes before the proclamation. As such, President Yoon’s declaration of emergency martial law is considered unconstitutional.
Legal Problems of Martial Law Decree No.1
Martial Law Decree No. 1, declared by the Martial Law Commander, also had legal issues. The first paragraph prohibited all political activities, including the activities of the National Assembly, local assemblies, political parties, political organizations, as well as assemblies and protests. Article 77(3) of the Constitution allows that certain measures could be taken regarding the warrant system, freedom of speech, press, assembly, association, or the powers of the Executive and the Judiciary. However, it does not allow actions against the National Assembly. The National Assembly is an institution with the authority to demand the lifting of martial law. Even during martial law, members of the National Assembly cannot be arrested or detained unless they are caught in flagrante delicto.[6] Paragraph 1 of the Martial Law Decree clearly falls outside the constitutional and statutory powers of martial law.
Martial Law Decree No. 1 placed all media and publications under the control of the martial law authorities. It also banned fake news, manipulation of public opinion, and false propaganda. Aside from Paragraph 5, which threatened medical doctors to work,[7] the wording of this Martial Law Decree closely resembles that of earlier martial law decrees issued by past authoritarian regimes in the 1970s and 1980s to suppress opposition, which resulted in widespread human rights violations.
There were military personnel with a mission to arrest high profile politicians. A list of 15 individuals who were targeted for arrest by the martial law forces was revealed. This list included National Assembly Speaker Woo Won-sik, opposition leader Lee Jae-myung, the ruling party leader Han Dong-hoon (with whom relations had soured), as well as journalists, members of the National Election Commission, and the chairman of the Korean Confederation of Trade Unions. In addition, a former Chief Justice and a former Justice of the Supreme Court, and even a current judge were included on the arrest list. The judges on this list were involved in the case of Lee Jae-myung, the leader of the opposition party. Arrest squads were dispatched to the offices of party leaders and other locations. However, fortunately, no one was arrested or detained. They were to justify the arrests for violating of the Martial Law Decree, prohibition of political activities.[8]
Charges of Insurrection against President Yoon
The incident on the night of December 3 is referred to as a self-coup, and an investigation has begun to determine whether this event constitutes the crime of insurrection. Article 87 of the Korean Criminal Act punishes acts of insurrection. Insurrection is punished for those who create a violence for the purpose of excluding national power or subverting the Constitution. The act of the martial law force entering the National Assembly on the night of December 3 and obstructing the resolution of the members of the National Assembly is likely to meet the elements of the crime. There is a Supreme Court precedent related to this issue. In a 1997 ruling, the Supreme Court of Korea decided whether former President Chun Doo-hwan’s nationwide extension of the martial law on May 17, 1980, constituted insurrection. Among the various issues and facts of this case, one of the key facts was the declaration of nationwide martial law and the deployment of troops to occupy the National Assembly building, controlling the access of its members. The Supreme Court affirmed that there was a purpose to subvert the Constitution and an act of violence, thus the crime of insurrection.[9] The punishment for insurrection varies depending on the role played. 1) The leader is subject to the death penalty or life imprisonment; 2) those who participate in or commands a plot, or engages in other essential activities are subject to the death penalty, life imprisonment, or imprisonment for at least 5 years; and 3) those who merely follow the lead of another or merely join in the violence to imprisonment for up to 5 years.
The then-Minister of National Defense Kim Yong-hyun and the Chief of Army and Martial Law Commander Park An-su have been arrested on charges of being a key member in the crime of insurrection.[10] The chiefs of the Defense Counterintelligence Command, the Army Special Warfare Command, and the Capital Defense Command have also been arrested. The Chief of the Korean Police and the head of the Seoul Metropolitan Police have been arrested as well. Some of their statements identified President Yoon Suk-yeol as the leader of the insurrection. Under Article 84 of the Constitution, the president is granted immunity from criminal prosecution while in office, with the explicit exception that crimes of insurrection and treason may still be prosecuted. Yoon is currently subject to a travel ban, and there is speculation that he could become the first sitting president in South Korea to be arrested.
Impeachment Trial against President Yoon
The Korean Constitution provides impeachment as a means of protecting the Constitution from violations by high-ranking officials. When the president or other high-ranking public officials violate the Constitution or statutes in the execution of their duties, the National Assembly may pass a motion of impeachment proceedings.[11] An impeachment motion against the president requires the proposal of a majority of the members of the National Assembly and the approval of two-thirds of the members. Once the impeachment motion is passed, the Constitutional Court conducts an impeachment trial.[12] The Constitutional Court has stated that a “grave” violation of the constitution or statute is required to justify the removal of an official from office.[13]
Due to President Yoon Suk-yeol’s declaration of martial law, many citizens believed he should step down from office, prompting the initiation of impeachment proceedings. The National Assembly of Korea consists of a single chamber with 300 members.[14] On Saturday, December 7, when the vote for Yoon’s impeachment motion took place, most members of the ruling party left the session, causing the motion to be automatically dismissed. However, on the following Saturday, December 14, the impeachment motion passed with 204 votes in favor. As a result, President Yoon Suk-yeol was suspended from office, and Prime Minister Han Duck-soo assumed the role of acting president.
The impeachment case has now been transferred to the Constitutional Court and assigned the case number 2024Hun-Na8. An important issue has arisen, however. The Constitutional Court is meant to consist of 9 justices, but currently, only 6 are serving. The president appoints 9 justices, 3 of whom are elected by the National Assembly, and 3 are nominated by the Chief Justice of the Supreme Court.[15] The positions of the Chief Justice of the Constitutional Court and two other justices, who are to be elected by the National Assembly, have remained vacant due to the failure to appoint replacements since October 2024. While the Court may proceed with hearings with 6 justices temporarily,[16] the issue remains regarding the impeachment decision after the hearing. When the Constitutional Court makes a decision on impeachment, at least 6 justices must agree.[17] There remains the challenge that all 6 justices must agree on the impeachment decision. Currently, the majority party in the National Assembly plans to expedite the appointment process for the remaining 3 justices to complete the full bench of 9 as soon as possible.
There are two precedents for impeachment cases against a president in South Korea. In 2004, it took 63 days to reject the impeachment of President Roh Moo-hyun,[18] and in 2017, it took 91 days to render a ruling on the impeachment of President Park Geun-hye[19] The impeachment case against President Yoon Suk-yeol involves relatively straightforward issues, such as the declaration of martial law and allegations of insurrection. The Constitutional Court will decide whether they are grave violation of the Constitution and statutes. The Court is required to render a final decision within 180 days,[20] but given the simplicity of the issues, it is possible that the ruling will be made more quickly. It is highly likely that a decision on the impeachment will be rendered before two justices retire in April 18, 2025. If the Constitutional Court rejects the case, Yoon Suk-yeol will return to office. If the impeachment is upheld and the president is removed from office, a new presidential election must be held within 60 days.[21]
Conclusion
South Korea has lived through several authoritarian regimes and has declared martial law approximately 10 times in the past. The last martial law was declared in October 1979, extended in May 1980, and lifted in January 1981. In 1987, the country transitioned to democracy. South Korea is acutely aware that the human rights violations committed under the pretext of martial law are more traumatic than the emergency itself. The recent declaration of martial law, the first in 45 years, nearly brought South Korea’s hard-earned democracy to the brink of crisis. However, it is hoped that the process of restoring democracy will ultimately result in even greater vitality.
Suggested citation: Yoomin Won, A Nightmare of Emergency Martial Law in South Korea – Followed by Charges of Insurrection and Impeachment, Int’l J. Const. L. Blog, Dec. 19, 2024, at: http://www.iconnectblog.com/a-nightmare-of-emergency-martial-law-in-south-korea-followed-by-charges-of-insurrection-and-impeachment/
[1] Article 77 of the Constitution includes a safeguard, in paragraph 5, that if the National Assembly requests the lifting of martial law with the approval of a majority of its total members, the president must comply.
[2] According to Article 88(1) of the Constitution, the State Council shall deliberate on important policies that fall within the power of the Executive. Article 89.5 of the Constitution states that it is mandatory to refer the declaration and termination of martial law to the State Council for deliberation.
[3] Article 77(4) of the Constitution.
[4] Article 89.5 of the Constitution.
[5] Article 82 of the Constitution.
[6] Article 13 of the Martial Law Act.
[7] Martial Law Decree, in Paragraph 5, stipulated that all medical personnel who abandoned their duties must return to work within 48 hours, with severe penalties imposed for violations. The Yoon administration has had significant conflicts with doctors. Until last year, the quota for entering medical school was 3,000, but this year it was suddenly increased to 5,000, leading to widespread unrest and causing many doctors in their residency to resign.
[8] Furthermore, around 300 soldiers took control of the Election Commission. President Yoon Suk-yeol, in his national address on December 12 stated that the security system of the National Election Commission was inadequate, making data manipulation possible, and therefore the election results could not be trusted. It is speculated that Yoon had soldiers seize the servers of the Election Commission in an attempt to prove that the opposition’s overwhelming victory in the previous general election was the result of election fraud.
[9] Supreme Court of Korea, 96Do3376, April 17, 1997.
[10] The Minister of the Interior, Lee Sang-min, and the Minister of National Defense, Kim Yong-hyun—the ones who have the authority to propose martial law to the President—along with Director of the Defense Counterintelligence Command Yeo In-hyung and President Yoon Suk-yeol, all graduated from the same high school in Seoul.
[11] Article 65 of the Constitution.
[12] Article 111(1) of the Constitution.
[13] Constitutional Court of Korea, 2004Hun-Na1, May 14, 2004.
[14] After the general election in April 2024, the opposition party, the Democratic Party, won 171 seats, while the ruling People Power Party holds 108 seats, the Rebuilding Korea Party holds 12 seats, and the remaining 9 seats are divided among smaller parties.
[15] Article 111(1) 2. of the Constitution.
[16] Article 23(1) of the Constitutional Court Act provides that the Court hears cases with the presence of at least 7 justices. This provision is currently suspended temporarily. The Constitutional Court has made a decision to suspend the effect of this provision in cases where the position of a justice becomes vacant. [Constitutional Court of Korea, 2024Hun-Sa1250, October 14, 2024]
[17] Article 113(1) of the Constitution
[18] Constitutional Court of Korea, 2004Hun-Na1, May 14, 2004.
[19] Constitutional Court of Korea, 2016Hun-Na1, March 10, 2017.
[20] Article 38 of the Constitutional Court Act.
[21] Article 68(2) of the Constitution.
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