President Yoon's imminent arrest sparks debate over political, constitutional ramifications

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President Yoon's imminent arrest sparks debate over political, constitutional ramifications

Published: 10 Dec. 2024, 19:06 Updated: 10 Dec. 2024, 19:09

SEO JI-EUN
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Audio report: written by reporters, read by AI

President Yoon Suk Yeol bows in apology during a public address at the presidential office in Yongsan, central Seoul, on Dec. 7, ahead of the National Assembly’s vote on his impeachment motion. [PRESIDENTIAL OFFICE]

For the first time in Korea’s history, the arrest of a sitting president appears imminent as President Yoon Suk Yeol faces allegations of leading a failed, short-lived attempt to impose martial law last week.

This has ignited a heated debate over the constitutional and political ramifications if a sitting president is detained.

The arrest of former Defense Minister Kim Yong-hyun, who proposed the martial law declaration to the president, is expected to be the first arrest related to the martial law decree.

Prosecutors allege in Kim Yong-hyun’s arrest warrant that he "conspired with Yoon to instigate an insurrection aimed at disrupting the Constitution." While Kim faces charges as a "key participant in treason," Yoon is automatically implicated under the Penal Code as the "mastermind," according to an exclusive report from the JoongAng Ilbo, an affiliate of the Korea JoongAng Daily, on Tuesday.

Prime Minister Han Duck-soo delivers remarks on behalf of the government during a plenary session at the National Assembly in Yeouido, western Seoul, on Tuesday. [YONHAP]

Under Article 84 of the Constitution, a sitting president can be prosecuted only for treason or crimes against the state. However, the absence of any precedent for investigating or detaining a sitting president has left legal experts grappling with procedural uncertainties.

Article 71 stipulates that presidential powers shall be transferred to the prime minister or the members of the State Council in case the presidency is "vacant" or if the president is "unable to perform."

A vacancy — defined as arising from death, resignation or impeachment — requires a successor to be elected within 60 days, according to Article 68. In contrast, "unable to perform" refers to situations where the president cannot perform duties but remains in office, yet there is a lack of clear criteria for determining such incapacity.

Legal experts largely agree that detention would constitute being "unable to perform," temporarily enabling the prime minister to assume presidential powers.

"Detention should be viewed as 'unable to perform,'" said Noh Hee-beom, a lawyer and former Constitutional Court researcher, during an interview with a local radio station CBS on Tuesday. "The president’s constitutional duties are immense ... making it impossible to perform them from a detention facility."

Prime Minister Han Duck-soo, the first in line to act as president under current laws, is expected to assume authority if Yoon is detained.

"Even if the president is implicated in treason, Han remains the first-choice proxy under constitutional provisions," Noh explained.

However, complications have arisen as the police have summoned Han and other Cabinet members who attended a meeting before the martial law was declared as suspects for questioning, raising questions about his eligibility to serve as acting president if detained or implicated.

The Government Organization Act outlines the hierarchy of Cabinet members, which determines the order of presidential succession: minister of economy and finance; minister of education; minister of science and ICT; minister of foreign affairs; minister of unification; minister of justice; minister of national defense; minister of the interior and safety; minister of patriots and veterans affairs; minister of culture, sports and tourism; minister of agriculture, food and rural affairs; minister of trade, industry, and energy; minister of health and welfare; minister of environment; minister of employment and labor; minister of gender equality and family; minister of land, infrastructure, and transport; minister of oceans and fisheries; and minister of SMEs and startups.

If all Cabinet members who attended the martial law-related meeting are excluded from the line of succession due to investigations or charges, the next in line would be Lee Ju-ho, the deputy prime minister for social affairs and minister of education, assuming the role of acting president under the constitutional framework.

Experts emphasize that the acting president’s powers would be limited to managing government operations, raising questions about how far the delegation of power should extend and for how long.

For instance, a prime minister, unlike some countries, is an unelected official in Korea, lacking the democratic legitimacy to exercise full presidential authority.

Scenarios for President Yoon Suk Yeol's "orderly exit" [NAM JUNG-HYUN]

The likelihood of Yoon’s arrest has increased following revelations in the investigation.

Kim has waived his detention hearing, signaling his willingness to accept legal responsibility. If Kim is detained, prosecutors are expected to intensify their investigation into Yoon. Notably, Yoon has already been placed under a travel ban, the first such measure against a sitting president.

Yoon said he "will not evade legal or political responsibility" regarding the declaration of martial law in a public address on Saturday, signaling a willingness to confront the charges head-on.

BY SEO JI-EUN [[email protected]]