Reflections on emergency powers

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Reflections on emergency powers

Published: 20 Mar. 2025, 00:01

Audio report: written by reporters, read by AI

Chin Jung-kwon

The author is a professor at Kwangwoon University.

During the time when Yoon Suk Yeol was being considered a leading presidential candidate, I had the opportunity to dine with him one-on-one. During our conversation, we unexpectedly delved into the topic of Carl Schmitt (1988-1985). He seemed intrigued that a legal scholar’s name had appeared in a column written by someone specializing in aesthetics.

In that column, I had argued that the Democratic Party’s understanding of law was far removed from liberalism and bore a resemblance to Carl Schmitt’s views. That statement must have caught his attention. In any case, I recall that, during our meeting, we shared a critical perspective on this Nazi legal scholar.

Yoon Suk Yeol declaring martial law in an unannounced press conference at the Yongsan presidential office in central Seoul on Dec. 3, 2024. [YONHAP]

Despite my lack of legal expertise, he explained to me that Schmitt’s constitutional theory was known as "decisionism" and pointed out that in Korea, there was a scholar who had offered an alternative to this theory. That scholar was none other than constitutional law professor Heo Young.

However, I find myself perplexed by the recent statements made by President Yoon and Prof. Heo in the media, as they starkly contrast what I had heard during our conversation. Have their views changed over time, or did I fail to grasp their true meaning due to my own ignorance?

According to the prosecution’s indictment, President Yoon had been discussing "emergency powers" as early as March last year, right after the general election. By April, he had reportedly told those around him that "there was no choice but to navigate the political landscape through emergency powers."

Prof. Heo, too, defends the legitimacy of the president’s invocation of "emergency powers," arguing that it is a rightful exercise of authority stipulated in the Constitution. He states, "The power to declare martial law is one of the emergency powers defined by the Constitution, and the authority to determine whether an emergency situation exists rests solely with the president."

German scholar and member of the Nazi Party Carl Schmitt.

It is a given that martial law may be enacted in a state of national emergency. The real issue, however, is who has the authority to determine when such an emergency exists. Prof. Heo asserts that this authority belongs "exclusively to the president." How is this any different from Carl Schmitt’s doctrine that sovereignty lies with the one who decides on a state of emergency?

The vast majority of the public did not perceive the events of Dec. 3 as a national emergency. Article 1 of the Korean Constitution states, "Sovereignty in the Republic of Korea resides with the people." Shouldn’t this mean that the power to determine when an emergency exists also belongs to the people?

The Constitution explicitly stipulates the conditions for declaring martial law and requires parliamentary approval for it. This is precisely why such safeguards exist. Yet, Prof. Heo argues, "Even if the public’s perception differs, the president, who has been entrusted with sovereignty through representative democracy, must make an independent judgment and bear responsibility according to his conscience."

Essentially, this suggests that since the president is elected by the people and entrusted with sovereignty, his personal judgment should be regarded as the judgment of the people. If this reasoning were to be accepted, then all emergency decrees issued arbitrarily by Park Chung Hee would also have to be considered expressions of the people's will.

In mathematics, axioms serve as foundational truths that require no proof. By analogy, in the realm of law, the "decision of a leader" is treated as an axiom — that is, just as mathematical axioms are free from the burden of proof, a leader’s decision would be exempt from judicial review.

The "responsibility" that the president is supposedly expected to bear "in accordance with his conscience" is likely not legal accountability but rather some vague notion of "responsibility before history." The president’s supporters, in their defense of emergency powers, effectively position such authority outside the framework of the Constitution. How, then, does this differ from Carl Schmitt’s ideas?

While legal experts draft constitutional provisions, the actual "foundation" or "activation" of a constitution is often the result of political upheaval — revolutions or coups rather than purely legal processes. Perhaps, this is why emergency powers are seen as existing outside the realm of law.

Consider, for instance, the infamous ruling that stated, "A successful coup cannot be punished." Such thinking may very well underlie this approach. Regardless, at our meeting, President Yoon introduced Prof. Heo as someone who had presented an alternative to decisionist constitutionalism, yet now both of them leave me bewildered.

President Yoon Suk Yeol greets his supporters upon arriving at his official residence in Yongsan District, central Seoul, on March 8. [YONHAP]

The liberal thinker I dined with has suddenly declared martial law and is vehemently asserting the extraconstitutional status of emergency powers. The repeated impeachment motions — 29 times — and relentless special investigations seem to have led him to view the political gridlock as analogous to the indecisiveness of the Weimar Republic.

When conspiracy theories — such as election-rigging claims against the National Election Commission and allegations of Chinese government interference — circulate widely on YouTube, they fuel a delusion: "The nation is facing an internal and external crisis, and as president, I must act as the constitutional guardian through extraordinary measures."

This is nothing new. The entire nation is aware that this is merely a rehash of the rhetoric wielded by past military dictators to justify their rule. Perhaps, that is why even the president’s supporters are now shifting their stance —from arguing for the "dismissal" of impeachment to advocating for its outright "rejection."

Those who invoke Schmitt’s logic to justify martial law suddenly present themselves as strict legal positivists when pressuring the Constitutional Court to reject impeachment proceedings altogether. This contradiction is as striking as the president’s own self-defeating stance of undermining the constitutional order in the name of its preservation.

Translated using generative AI and edited by Korea JoongAng Daily staff.