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A democracy’s fatal self-harm

Published: 10 Dec. 2024, 19:54

Kim Jin-han
The author is an attorney and a former research judge in the Constitutional Court.

Looking back, there were many signs. Every government makes mistakes. What matters is the effort to reduce them and the willingness to recognize and correct them when they are made. That is what the Yoon Suk Yeol administration lacked. It was filled with repeated denials, miscommunication and blame shifting to the previous government and the opposition party. Yoon vetoed dozens of bills passed by the National Assembly but never tried to negotiate or compromise. To him, the opposition was the worst kind of criminal organization and an antistate force.

On Dec. 3, 2024, Yoon abruptly declared emergency martial law in the middle of a peaceful night. The essence of emergency martial law is to allow dictatorship through “laws” and “institutions.” It is a “poison pill” of democracy that can only be used as a last resort to suspend constitutional rule, deprive people of their basic rights and protect the life of the republic. The moment martial law was declared and daily life was disrupted, the president revealed himself as the greatest danger to freedom and democracy.

The reason we need state power is to protect the freedom and safety of all people. But state power, the greatest of all powers, is a precarious tool that can be abused. That is why the Constitution was created. The power of individual citizens is weak, so power is the only thing that can control power. Powers were divided and entrusted to different institutions, and checks and balances were established between the divided powers. The Constitution is a detailed design of this power structure. It is dangerous for political power to violate the Constitution. When the Constitution falls, the safety and freedom of the people are compromised, and our security, diplomacy and the fate of our republic become a precarious beacon in the wind.

Declaring martial law in times of peace as an attempt of a dictatorship is itself an act of “treason” against a democratic republic. A functioning republic would immediately remove him from office and punish him. That is the reasonable self-defense mechanism of a republic.

However, something strange happened. Citing abnormal reasons, the ruling party lawmakers are blocking presidential impeachment. The prime minister and the leader of the ruling party claim that they will lead the country for the sake of an “orderly transition of power.” The president may not be “legally suspended,” but he will be suspended from all duties including diplomacy, they said. They oppose the constitutional and lawful method of suspending the president through impeachment, opting to suspend the president arbitrarily instead.

The design of the Constitution is more sophisticated and complex than we might think. Unforeseen issues are bound to pop up. Who commands the armed forces in a state of emergency? Who appoints the Supreme Court chief justice and Constitutional Court judges?

It is constitutionally impermissible for a president to not perform his duties when he or she is not legally suspended. If the president, after a hiatus, claims his constitutional mandate and resumes duties, do they have a way to stop him? If not, how will they be held accountable for not using legal means sooner? And if they do suspend the president, who gave them such power? The Constitution and the sovereign citizens, at least, never give them such power.

The prime minister and the leader of the ruling party may soon enter the stage of creating a new Constitution, moving beyond the stage of breaking the current Constitution. They are starting something they cannot handle. Declaring emergency martial law without meeting the requirements of the Constitution is a destruction of the constitutional order, and so is arbitrarily altering the power structure designed by the Constitution.

The fate of the republic, which we have held onto for dear life, is in danger again. Constitutional chaos is continuing. The cause of this chaos is self-evident, as is the solution. The impeachment of the president, who betrayed the republic, must be passed according to the procedures and principles stipulated in the Constitution. Attempting to avoid impeachment with a politics of words and skills and letting it happen harms the republic. Our republic is not meant to fall in that way.

Translation by the Korea JoongAng Daily staff.