Legal community rebukes Yoon's martial law declaration as 'unconstitutional'

Home > National > Politics

Legal community rebukes Yoon's martial law declaration as 'unconstitutional'

Published: 04 Dec. 2024, 02:26 Updated: 04 Dec. 2024, 20:11

SEO JI-EUN
[email protected]

Audio report: written by reporters, read by AI

The main building of the National Assembly on late Tuesday night after President Yoon Suk Yeol declares emergency martial law that day [NEWS1]

The first declaration of martial law in 45 years by President Yoon Suk Yeol on Tuesday night has raised serious questions over its constitutional legitimacy, potentially constituting grounds for impeachment, legal experts argue.

Yoon declared emergency martial law a bit before 10:30 p.m. Tuesday, which was lifted only six hours later, three and a half hours after the National Assembly unanimously passed a resolution to lift it. This was the first time since 1979 — following the assassination of President Park Chung Hee — and the 17th time in Korea’s whole history that a state of martial law was declared.

According to Korea’s Constitution, martial law can be declared in “time of war, incident or similar national emergency” when public order cannot be maintained. Historically, martial law has been invoked during significant crises, such as the Korean War and the May 16 military coup d'état. The Martial Law Act also specifies that emergency martial law can be declared when "there are belligerency or serious disturbances of social order that impede the performance of the administrative and judicial functions of the State."

Korean President Yoon Suk Yeol speaks at a press conference at the Yongsan presidential office in central Seoul Tuesday night. [YONHAP]

Yoon justified his decision by accusing the opposition Democratic Party of paralyzing the government, with actions such as the impeachment of key public officials like the Bureau of Audit and Inspection chair and prosecutors, as well as drastic budget cuts.

Legal scholars criticized the move, arguing that it does not meet the constitutional criteria for martial law.

“The justification for martial law simply does not exist. This declaration itself is grounds for impeachment,” Han In-sup, a professor at Seoul National University Law School, wrote on Facebook. He further warned that blocking lawmakers from convening could constitute insurrection by the president.

“Martial law is meant for situations where military or police forces cannot maintain public order," Cha Jin-a, a professor at Korea University Law School, told the JoongAng Ilbo, an affiliate of the Korea JoongAng Daily. "Even if the [opposition] Democratic Party has limited the power of the judiciary, it does not justify this extreme measure.”

Chang Young-soo, another professor at Korea University Law School, suggested the declaration could lead to impeachment if deemed an abuse of power.

“Misusing authority to declare martial law could be interpreted as an impeachable offense,” he said.

The Supreme Court building in Seocho District, southern Seoul, remains illuminated through the early hours of Wednesday as the National Assembly passed a resolution demanding the repeal of President Yoon Suk Yeol’s martial law declaration. [NEWS1]

The country's two largest judicial civic organizations issued a statement criticizing the move as unconstitutional and undemocratic.

In a statement, the Korea Bar Association argued, "We do not even feel the need to counter the president's claims that the current situation constitutes a state of war, armed conflict or a national emergency as defined by the Constitution.

“By declaring martial law and immediately shutting down the National Assembly, the president has physically blocked any efforts to demand the termination of martial law," it added. "This clearly reveals that the declaration is both substantively and procedurally unconstitutional.”

The Lawyers for a Democratic Society, or Minbyun, filed a constitutional petition on Wednesday on the legality of Yoon's martial law declaration.

Minbyun argued that the declaration, along with the proclamation issued by Martial Law Commander General Park An-su, violated fundamental constitutional rights, including freedoms of assembly, association, speech and expression. The petition also cited infringements on the right to general freedom of action and personal dignity.

“This declaration and its subsequent measures have severely encroached upon basic democratic freedoms and human rights,” Minbyun stated. “We urge the court to confirm the unconstitutionality of these actions.”

The criticism continued within members of the judiciary and prosecution.

“What President Yoon has done amounts to an attempted coup that undermines Korea’s constitutional order," wrote Park Byung-gon, a judge at the Seoul Central District Court, on the court’s internal network.

Similarly, Kim Tae-hoon, a prosecutor at the Seoul High Prosecutors’ Office, posted on the prosecution’s internal platform, saying, “The proclamation, troop deployment and related actions by the martial law command appear to constitute abuse of authority, even before considering whether they meet the criteria for treason.”

Kim Do-kyun, a senior judge at the Busan District Court, criticized the judiciary’s response, expressing frustration with the Supreme Court’s perceived inaction.

“I felt a deep sense of concern and anger over the Supreme Court’s passive stance — and actions that seem to align with martial law,” he wrote.

Chief Justice Jo Hee-de responds to reporters’ questions regarding President Yoon Suk Yeol’s martial law declaration as he arrives at the Supreme Court in Seocho District, southern Seoul, on Wednesday morning. [NEWS1]

Chief Justice of the Supreme Court Jo Hee-de said “We will need to observe what procedures were followed in due course,” on his way to work on Wednesday morning in response to claims that the declaration bypassed Cabinet deliberation and formal notification.

When asked whether the declaration could serve as grounds for impeachment, Cho said he "will address that matter at a later time.”

Updated, Dec. 4: Comments from judicial sector, chief justice of the Supreme Court.

BY KIM JUN-YOUNG,CHOI SEO-IN,SEO JI-EUN [[email protected]]