When Democracy Prevails
On the Recent Events in South Korea
On December 3 at 10:25 pm, the President of South Korea Yoon Suk Yeol declared emergency martial law, which lasted for 6 hours until it was lifted following the unanimous vote of the South Korean Parliament to immediately end its imposition. The South Korean Constitution states that when the majority of the National Assembly requests the lifting of martial law, the President shall comply immediately (Article 77 Paragraph 5). The 190 representatives who cast the necessary votes had been able to circumvent the blockade of police and military surrounding the National Assembly, partly by climbing over walls where police presence could be evaded. Videos of representatives and parliamentary advisors searching for hidden entrances or being engaged in physical conflict with the army and police forces to enter the National Assembly are being circulated on social media, making it possible for the entire nation and the international observers to witness the frontal attack on the nation’s democracy. This blog analyzes the legal aspects of the President’s failed attempt to maintain a martial law regime and further reflects on the significance of this event for the evolution of democracy in South Korea.
The Use of Martial Law before Democracy
To understand the true political meaning of this grave challenge to Korean democracy, it is essential to look back on how the country has achieved the transition from an autocratic to a democratic political system in the late 20th century. Until the night of December 3, martial law was last imposed in South Korea when the former President and authoritarian ruler Park Chung Hee was assassinated on October 26, 1979. Following the death of Park, the next President Chun Doo Hwan extended the preexisting martial law regime to the entire nation, imposing comprehensive restrictions on the civil and political rights of citizens of the oppressive regime. Yet this regime can also be marked as a crucial inflection point in the historical transition from an oppressive military government to constitutional democracy. In 1987, a series of demonstrations led by university students demanding a direct, democratic presidential election took place, which led to the establishment of a democratic republic with comprehensive fundamental rights guarantees. Against this background, it is easy to understand why the use of martial law by political leaders is intensely associated with dictatorship in the Korean mind. The night of December 3 was indeed a traumatizing shock, evoking fear and anger within those who fought for constitutional democracy and political freedom, and within younger generations because of the extent of the illegality and absurdity of the President’s action.
Illegal and Unconstitutional
According to Article 2 Section 2 of the Martial Law Act, “emergency martial law shall be declared by the President for the purpose of fulfilling military necessity or maintaining the public security and order when there are belligerency or serious disturbances of social order that considerably impede the performance of the administrative and judicial functions of the State in time of war, incident or other equivalent national emergency.” Legal experts regardless of their political disposition have asserted that these conditions were not fulfilled and the application of Article 2 for declaring emergency martial law thus illegal. Other procedural clauses regarding the declaration were also violated. Article 4 of the Martial Law Act provides that upon declaration of martial law by the President, they shall notify the National Assembly without delay. Instead, the President summoned police and military forces to the National Assembly, presumably to prevent representatives from voting to block martial law.
The legal problems surrounding the President’s actions on December 3 exceed the threshold of mere illegality because constitutional norms were also violated. The main reason for the unconstitutionality of President Yoon’s measure can be found in the total suspension of parliamentary activities. The South Korean Constitution grants Parliament as the only division of power the competency to override and lift the President’s declaration of martial law. Thus, even while martial law is validly taking effect, the assembly of Parliament cannot be banned under any circumstances. Further, Article 77 of the South Korean Constitution states that under emergency martial law, special measures may be taken with respect to the necessity for warrants, freedom of speech, the press, assembly and association, or the powers of the Executive and the Judiciary under the conditions as prescribed by Act. However, the decrees that were issued by the martial law commander, Chief of Staff Park An Soo, during the first few hours of constitutional emergency exceed what the Constitution permits. The first decree under martial law banned all political activities of the National as well as regional Assembly – an extensive restriction of constitutional rights which cannot be justified under the Constitution.
The Prospect of Criminal Charges
Critics are demanding that a criminal charge against the President follow as well, arguing that his unlawful declaration of emergency martial law can be applied to the crime of insurrection according to Article 87 of the South Korean Criminal Act. The Article states that “a person who creates violence for the purpose of usurping the national territory or subverting the Constitution shall be punished”. Despite a hint of vagueness in the elements of the offence, this Article has previously been applied to martial law regimes imposed by the former president Chun during his military regime by the Supreme Court in a decision from 1997. As such, there is both precedence and relevant legal reasoning that can facilitate with the assessment of the illegality of the President’s actions. A case for the application of the crime of insurrection can be made by proving that the President’s deployment of military power was conducted with the intent to intervene in parliamentary activities and to disable the Assembly’s power to reverse the martial law order. Whether the declaration and exercise of the President’s right to declare martial law was intended to destabilize the constitutional order will be the key criteria for determining the abuse of his power and the crime of insurrection. It is worth mentioning that the intent as well as the actual course of events before the declaration of martial law must be scrutinized before condemning the President’s actions as an insurrection solely for political purposes.
The Likelihood of Impeachment
For now, civil society as well as oppositional parties are more likely to focus their efforts on seizing the momentum for the impeachment procedures that have been initiated. Even before the recent series of events, the President has been suffering from a loss of public support, polling at around 20% in terms of popularity. As the largest opposition party (Democratic Party of Korea) owns the majority of seats (171 out of 300), it is highly likely that the impeachment process will continue to proceed. On December 4, six opposition parties have submitted the motion for impeachment. At the same time, mass protests demanding the resignation as well as criminal punishment of the President are taking place. The motion for impeachment must be approved by two thirds or more of the total members of the National Assembly (200 out of 300) for the Constitutional Court to adjudicate on impeachment. Since the current President faces heavy criticism among members of his own Party (People’s Power Party) which owns 108 seats, the motion is expected to be approved.
Since the impeachment of President Park Geun Hye in 2017, who was pronounced guilty of abusing presidential power during her presidency, the Korean public has gained a strong sense of empowerment in its capacity as a politically engaged civil society. Mass political demonstrations from October 2016 to April 2017 as well as a series of peaceful night protests in main public squares of the capital led to the impeachment of the President for the first time in South Korean history. This has engrained in the Korean people’s minds that no one stands above the law and the Constitution, and that abuses of presidential power must face prompt and due consequences. For this reason, the large-scale protests that are expected to follow in the upcoming weeks will likely take a similar form as in the civil movements that preceded the impeachment of President Park.
A Lesson for Observers
South Korea’s constitutional system of checks and balances as well as its civil society have proven themselves to be awake and the shock of Tuesday’s events are likely to further fuel efforts to consolidate its democratic values. At the same time, this unforeseen test against South Korea’s democracy provides another lesson on the susceptibility of democratic institutions to be abused by those with highly concentrated political power.