Blog of the International Journal of Constitutional Law

Symposium on South Korea’s Martial Law Declaration Part 1: Assessing the Ongoing Constitutional Crisis

Dongeun Joh, Associate Professor, Seoul National University School of Law

More than a month has passed since President Yoon Suk Yeol’s declaration of emergency martial law was imposed upon the nation on December 3,2024. While the initial attempt to siege the National Assembly with the military was thwarted by a citizens’ blockade and the martial law itself was lifted after six hours due to the Assembly’s swift resolution, the constitutional crisis set off by this unconstitutional exercise of presidential emergency power has left the country with profound reverberations.[1] South Korea’s constitutional democracy has been accredited as a relatively well-functioning, if imperfect, example of constitutional democracy. But now it is facing grave challenges that might put all these assessments into question. While citizens’ resistance against martial law troops entering the National Assembly building and fervent protests demanding Yoon’s impeachment gained media attention around the globe, the situations developed since implicate more complex legal dimensions. This brief analysis attempts to shed some light on the constitutional issues and their implications as they unfolded amidst the ongoing crisis.[2]

Martial Law and its Implications from the Point of View of Constitutional History  

The declaration of martial law on December 3 resonated deeply with historical traumas embedded in the collective memory of Korean people. The most recent martial law period of 1979-1981, during which the Gwangju Democratic Movement and subsequent massacre occurred still remains vivid for a generation of citizens.[3] Nobel laureate novelist Han Kang captures this moment in her work “Human Acts” with the line: “After you died I could not hold a funeral, and so my life became a funeral”. This sentiment of ‘life as a funeral’ arguably formed the emotional backdrop of citizens who spontaneously mobilized themselves to prevent military units from entering the National Assembly building on that day. Although this may sound like an overstatement, imagining the probable consequences of the martial law, had it succeeded, one shouldn’t be so sure. As it turned out, the President and some of his lieutenants not only tried to prevent the Assembly from convening, but also had planned to capture and detain some of its eminent members, sabotage its functioning and even establish an alternative emergency legislative body. What might have transpired beyond that point, one can only imagine. Unfortunately, these course of events does not lack comparable examples in Korean constitutional history.  

Among other historical incidents, the recent events echo the 1952 martial law declared during the Korean War. In the provisional capital city Busan, Rhee Syngman, the first President of the Republic, employed military police force to hijack the bus transporting the legislators en route to the Assembly building. Defeated in the recent general election and therefore faced with the prospect of losing the presidency, Rhee tried to deploy martial law troops to subjugate the Assembly led by the opposition.[4] Despite the Assembly Speaker Shin Ik-hee’s vehement protest and the Assembly’s resolution demanding the lifting of martial law, Rhee refused to comply and went on to introduce a constitutional amendment designed to implement the direct suffrage of the president. Under military siege, the newly-born Republic’s legislators yielded to the President, passing the constitutional amendment bill with no votes against.[5] Rhee would maintain his grip on power through another constitutional amendment in 1954 which eliminated presidential term limits for the then President of the Republic, i.e. himself. He was not forced out of office until April 1960, when protests demanding his resignation escalated to the level of a nationwide uprising.[6]

As indicated by the 1952 incident, history shows that martial law has served as a harbinger of authoritarian rule in Korea. The 1972 martial law declaration paved way to Park Chung-hee’s ‘Yushin’ dictatorship[7], and the aforementioned 1979 declaration eventually led to the presidential ascendency of general Chun Doo-hwan, who was responsible for the Gwangju massacre. Each instance followed a similar pattern: forced neutralization or dissolution of the National Assembly followed by consolidation of an unchecked executive power under an authoritarian presidency. This repeated pattern was thought to have been finally warded off after mass movement for democratization succeeded in June 1987. Military intervention in politics and unconstitutional executive overreach were at last to be relics of the past.[8] At least it seemed so for nearly 40 years.

It turned out that the time for relief is still yet to come. Though the martial law declared this time was terminated within six hours due to the Assembly’s determined move,[9] it became clear that Yoon is quite capable of breaking the Constitution by force. It was imperative that measures had to be taken so what happened in the past should not repeat itself. Constitutional steps to meet the demand took a decisive turn on December 14when an impeachment resolution against Yoon was passed in the National Assembly.

Problems with Justice(s): Judicial Appointments to the Constitutional Court

The judicial appointment process to the Constitutional Court emerged as a critical procedural prerequisite for the impeachment trial. The Korean Constitutional Court(KCC) consists of nine Justices appointed by the President, among whom three candidates are selected by the National Assembly and three nominated by the Chief Justice of the Supreme Court.[10] The National Assembly has been delaying the selection of Justices even after three Justices retired upon fulfilling their 6-year term in October 2024. The KCC requires the attendance of at least seven Justices for deliberation, and the impeachment must be approved by at least six Justices. [11] In principle, therefore, the impeachment trial should not have been able to commence with only 6 Justices on the bench. However, in October 2024, the Constitutional Court issued an emergency injunction suspending the validity of the relevant Constitutional Court Act provision in order to overcome this situation.[12] The appropriateness of this solution set aside, the Court was able to function with 6 Justices due to the injunction. Nevertheless, as the Court admitted in the injunction opinion, the legitimacy of rendering a final decision remained contentious.[13] Acknowledging this issue, the KCC has deliberately postponed significant decisions since October, focusing primarily on preliminary proceedings.

Following the presidential impeachment, the National Assembly promptly selected three Justice candidates, anticipating the immediate reconstitution of the full bench. However, Acting President Han Duck-soo, who assumed office following the President’s suspension,[14] unexpectedly declared that he would withhold the appointment of these three Justices absent bilateral consensus between the ruling and opposition parties. The political implication underlying this move was evident: to impede the progression of impeachment proceedings and maximize the probability of dismissal through procedural obstruction.

It does not take much analysis to conclude that there exists a clear violation of the Constitution here. While the president holds the power to appoint the Justices of the KCC, there is no dispute that the president must defer – without discretion – to the selections of the National Assembly and Chief Justice of the Supreme Court for six of the nine appointments. Again, there is no complex constitutional conundrum, as the Acting President cannot exercise authority exceeding that of the President proper. But this was essentially what Han did. The situation was particularly problematic given that with only six sitting Justices, a single dissenting vote would suffice to reinstate the suspended President and potentially preclude further investigation of violations associated with the martial law declaration.

The opposition party responded by initiating impeachment proceedings against Prime Minister Han in his capacity as Acting President. The grounds for impeachment included involvement in the declaration of martial law as Prime Minister, as well as the refusal to appoint the Justices as Acting President. This precipitated another constitutional question regarding the applicable impeachment threshold. The ruling party argued for applying the presidential impeachment provisions, given Han’s exercise of presidential functions. Conversely, the opposition maintained that standard impeachment procedures should apply, as Han’s fundamental status as Prime Minister remained unchanged despite his temporary assumption of presidential duties.[15] The Prime Minister is first in line to act for the President if the office of the presidency is vacant or the President is unable to perform his/her duties.[16] But unlike the Vice President in the U.S. or other nations, the Prime Minister does not succeed to the office of the President. Seen from this light, the Prime Minister should be seen as retaining his status while assuming the role of the President, even in the context of impeachment proceeding. This was ultimately the view that the Speaker of the National Assembly adopted. The impeachment for Han was passed with 192 votes in favor during the plenary session on December 27.[17]

Following Han’s suspension, Minister of Economy and Finance Choi Sang-mok assumed the role of Acting President. On December 31, two days after the tragic plane accident in Muan that claimed 179 lives, Choi appointed only two Justices—one each from the ruling and opposition nominations—leaving one position still vacant. Despite protests from both the ruling party and the opposition, this enabled the KCC to resume operations with eight Justices. While this arrangement enables avoiding immediate institutional paralysis,[18] the constitutional implications of the unfilled position remain subject to an ongoing litigation. A constitutional complaint has been filed regarding the failure to appoint the remaining Justice, contending that 8 Justices instead of 9 infringes upon one’s right to a fair trial as guaranteed by Article 27 of the Constitution.[19] We shall see how this litigation unfolds.

Reasons for Optimism, Reasons for Pessimism

The constitutional crisis is not over yet. Perhaps the crucial question to be asked here is whether the constitutional normalcy can be restored with the measures prescribed in the Constitution within a relatively short period of time. Yoon has been arrested on January 15 with the criminal charge of insurrection and taken into prolonged custody on the 19.[20] Taken together with the ongoing impeachment process, it may seem that the crisis triggered by his martial law attempt is coming to an end.

In retrospect, the situation could have deteriorated significantly at various points. Martial law troops could have seized control of the National Assembly, blocking the resolution to lift martial law. The impeachment charges might have been ultimately defeated, and if so, the arrest warrant could have been thwarted due to resistance from security agencies. Had any of these scenarios materialized, an unconstitutional dictatorship could have emerged, with the National Assembly – the sole possible constitutional check under martial law – rendered powerless. The swift and effective action of citizens, coupled with the legislature’s determination, prevented this outcome, demonstrating the resilience of Korean constitutional democracy. Despite the failure of the first attempt,[21] the impeachment motion was eventually passed in the National Assembly with the support of 12 ruling party members. After twists and turns, two additional Justices were appointed to the KCC and the impeachment trial is now underway. Over three decades of constitutional adjudication has accumulated a track record of resolving constitutional conflicts peacefully, and the current crisis itself is being processed under the rules that the Constitution prescribes. So, yes: How things turned out and are turning out provides some important reasons for optimism, optimism about restoring constitutional normalcy and securing long-term democratic stability.

However, there are also reasons for pessimism that cannot be overlooked. The President and his supporters have continued to assault the legitimacy of the National Assembly, the Courts – both general and constitutional – and Election Commission seeking justifications for the failed martial law attempt. Among these are election fraud claims that Yoon tried to conjure up evidence by searching the National Election Commission.[22] These efforts represent desperate hopes to establish an alternative legitimacy centered around Yoon and their supporters. The ominous part is that this is somehow taking effect. Messages attacking the legality and legitimacy of the impeachment proceeding and criminal procedure circulated among Yoon’s supporters, building up to tens of thousands of protesters gathering outside the Seoul Western District Court. When the news came out that a judge issued a warrant for Yoon’s extended detention, these protesters turned into rioters using violence to enter the court building. This assault, ultimately aimed at the judiciary, left the facility demolished and police officers wounded, shocking the nation with its aftermath.[23] If the ruling party chooses to lean towards this tendency as it is suspected of doing now, the grave political schism that has opened up might solidify beyond the point of resolution. And if the situation does in fact go down this path, it is likely that the remnants of this crisis could linger on long even after the transition to the next government is completed without hindrance. Korea is not immune to the global trend of increasing political polarization. The deteriorating political environment risks exceeding the constitution’s normative power and problem-solving capacity. One cannot say for sure that a judgment of constitutional failure would be out of the question.

Concluding Remarks

The present constitutional crisis constitutes arguably the most significant challenge to South Korea’s democratic system since its transition to democracy in 1987. What makes this situation unprecedented is that no President since democratization has so openly disregarded constitutional limits on executive power or displayed such explicit distrust towards democratic institutions. Particularly alarming is the involvement of the defense minister and high-ranking military officials, whose actions were influenced by extremist propaganda and conspiracy theories circulating on social media platforms. This troubling mixture of outmoded attempt at power seizure and modern digital misinformation indeed poses a serious challenge to Korean consitutionlism.

Constitutionalism cannot function solely with well-crafted legal documents and independent judiciary. There must be an intricate network of political, social and cultural conditions that support the normativity of the Constitution. A crucial element, among others, is a certain level of respect and veneration for the Constitution as a compact for coexistence shared by officials and citizens. The critical juncture we are at today may well determine whether the fundamental conditions for constitutionalism will be restored and reinforced, or whether their erosion will accelerate beyond repair. The ultimate outcome of this constitutional crisis that may shape the trajectory of Korean democracy in the future will largely depend on how wisely Koreans as a polity navigate these turbulent times.

Suggested citation: Dongeun Joh, Symposium on South Korea’s Martial Law Declaration Part 1: Assessing the Ongoing Constitutional Crisis, Int’l J. Const. L. Blog, Jan. 26, 2025, at: http://www.iconnectblog.com/symposium-on-south-koreas-martial-law-declaration-part-1-assessing-the-ongoing-constitutional-crisis/.


[1] The President may proclaim martial law if and only if “when it is required to cope with a military necessity or to maintain the public safety and order by mobilization of the military forces in time of war, armed conflict or similar national emergency”(Article 77(1) of the Constitution). It is  obvious that such conditions did not exist at the time of the declaration, not to mention the illegality of the attempt to assault the National Assembly.

[2] For a detailed account of the events starting from the martial law declaration leading up to Yoon’s impeachment, see https://www.iconnectblog.com/a-nightmare-of-emergency-martial-law-in-south-korea-followed-by-charges-of-insurrection-and-impeachment/ . One might ask whether the deficiencies within the current Constitution is the root cause of this crisis. There is certainly some serious academic work arguing that the Korean system of presidential government constantly invites an imperial presidency while becoming dysfunctional in situations of divided government. Indeed, the antagonism between the executive and legislative branches seemed to have reached an unprecedented level during the current administration. Although the argument presents some valid points and will certainly remain a debatable topic for years to come, the fact that no similar incident has ever happened during 37 years under the 1987 Constitution and that consitutionally mandated checks against the executive and subsequent procedures to deal with the presidential violation proved to be reasonably effective suggest the need for a more mutifaceted analysis. This is a task that far exceeds the scope of this paper. Here, I tried to focus more on the few major issues raised since the impeachment resolution was adopted by the National Assembly on December 14.

[3]  For a brief introduction, see https://www.britannica.com/event/Gwangju-Uprising ; https://guides.loc.gov/south-korean-democratization-movement/kwangju-uprising

[4] The President was to be elected by the National Assembly, not by direct suffrage according to the then effective 1948 Constitution.  

[5] 163 out of 166 legislators voted in favor, 3 abstained.

[6] The Preamble of the current Constitution mentions this event in the phrase: “the democratic ideals of the April Nineteenth Uprising of 1960 against injustice”.

[7] For a general account offered in English, see Hyung Baeg Im, “The Origins of the Yushin Regime: Machiavelli Unveiled”, in Byung-Kook Kim & Ezra F. Vogel(eds), The Park Chung Hee Era: The Transformation of South Korea, 233, (Harvard University Press 2011) as well as other essays in the same volume.

[8] Article 5(2) of the Constitution – the Constitution of 1987 – introduced the clause that “the political neutrality” of the Armed Forces “shall be maintained”. The current Constitution also significantly reduced the scope of the presidential power, notably by eliminating the presidential authority to dissolve the National Assembly. One of Yoon’s defense attornies for the impeachment trial stated that the martial law declaration would not have been necessary if the President still had this power.  It seems all the more strange that by admitting the necessity of a presidential power that does not exist, he also implied the underlying determination to go beyond what the Constitution permits.

[9] Within two and a half hours, the legislators rushed through the blockade to gather at the National Assembly building – some even climbing over the fences – and all 190 members present voted in favor of the demand to lift martial law.

[10] Article 111(3) of the Constitution.

[11] Article 23(1) of the Constitutionional Court Act states that “The Full Bench shall review a case by and with the attendance of seven or more Justices.” Article 113(1) requires the concurrence of six Justices or more for a decision of decision of the unconstitutionality of a statute, a decision of impeachment, a decision of dissolution of a political party or an affirmative decision regarding the constitutional complaint.

[12] Aformentioned Article 23(1) of the Constitutionional Court Act. The injunction decision is the following: Constitutional Court of Korea, 2024Hun-Sa1250, October 14, 2024.

[13] The court stated that if 6 Justices cannot reach a decision and if it is the case that the ultimate outcome would depend on three other Justices, the Court could wait for the final deliberation until further appointments are completed. 

[14] Article 65(3) of the Constitution states that “Any person against whom a motion for impeachment has been passed shall be suspended from exercising his/her power until the impeachment has been adjudicated.”

[15] Article 65(2) of the Constitution states: “A motion for impeachment prescribed in paragraph (1) may be proposed by one third or more of the total members of the National Assembly, and shall require a concurrent vote of a majority of the total members of the National Assembly for passage: Provided, That a motion for the impeachment of the President shall be proposed by a majority of the total members of the National Assembly and approved by two thirds or more of the total members of the National Assembly.”

[16] Article 71 of the Constitution: “If the office of the presidency is vacant or the President is unable to perform his/her duties for any reason, the Prime Minister or the members of the State Council in the order of priority as determined by Act shall act for him/her.”

[17] The total number of members of the National Assembly is 300 as of now. So 192 votes were more than what was necessary for impeaching the Prime Minsiter, less than the one for the President.

[18] It is worth noting that there is an important reason for the KCC to use current arrangement to proceed without delay. Two other Justices – Justices appointed by the President – are  scheduled to retire in April 2025, and problems associated with the vacancy of the Justices are very likely to resurface if the trial is not finished until then.

[19] Also, request for an adjudication on competence dispute under Article 111(1)4. of the Constitution has been filed by the Speaker of the Assembly against the Acting President, regarding the failure of appointment.     

[20] According to Article 84 of the Constitution, the President cannot be charged with a criminial offense during his tenure, with the exception of insurrection or treason.

[21] The first attempt for presidential impeachment failed due to the ruling party members’ refusal to participate. 

[22] This contention is mainly targeted against the 2020 and 2024 general elections which gave the current opposition party landsliding victories.   

[23] See https://www.koreaherald.com/article/10402159

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