By: Otto Fernandez
On December 3, 2024, the world held its breath through six hours of chaos while President Yoon Suk Yeol threatened democracy in South Korea. At 10:23 PM, President Yoon went on television and declared martial law, “reawakening dark memories of military rule” for every South Korean watching. This was the first time a President had declared martial law since South Korea had become a democracy in the late 1980s. Soon after the declaration, military helicopters landed on the national assembly building and troops stormed the opposition-controlled parliamentary body. Military personnel came in through smashed windows, clashed with parliament officials and a mass of protesting civilians, and attempted to block lawmakers from entering the building. At 12:35 AM, Parliamentary Speaker Woo Won-shik, who had been previously recorded jumping over a fence seeking entrance, reached the voting floor. Within the hour, lawmakers successfully passed a motion lifting martial law, voting 190 to 0. At 4:30 AM, President Yoon addressed South Korea once again, this time admitting defeat but reiterating his accusations against the opposition.
Today, the Constitutional Court of South Korea deliberates upon the impeachment of President Yoon for unconstitutionally declaring martial law. However, South Korea is divided on the matter, and a conviction is far from certain. On December 14, 2024, former Prime Minister Han Duck-Soo became acting president following President Yoon’s impeachment. However, his term would be short-lived because he too was impeached before the end of the month for failing to fill the vacancies on the Constitutional Court. Finally, successor Choi Sang-Mok appointed two judges and the impeachment proceedings began for both President Yoon and Former Prime Minister Han. On March 24, 2025, the Court dismissed the impeachment case against Prime Minister Han and reinstated him as acting President. The Court voted 7 to 1 to dismiss the case, reasoning that while it was illegal for Prime Minister Han to refuse to certify the judicial nominees, it was not enough to warrant his dismissal. Although the circumstances surrounding the impeachment of Prime Minister Han and President Yoon are distinct, this decision has signaled hope for President Yoon’s supporters.
Massive rallies have ensued since President Yoon’s arrest, which have divided the streets of Seoul and other cities in South Korea. While the public sentiment was initially against President Yoon, he has received more sympathy and support over time. President Yoon’s hearings concluded on February 25, 2025, and the Court has yet to announce a decision, making this the Court’s longest deliberation in its history. This delay has caused anxiety and desperation in South Korea, particularly for those against Yoon considering his impeachment had seemed so certain.
In South Korea, impeachment cases are decided based on two criteria: first, whether the action violated the constitution or the law; and second, whether such violation justifies impeachment. The requirements for a president to enact martial law are addressed in Article 77 of the Constitution of the Republic of Korea. There are two kinds of martial law that a president can call in South Korea, extraordinary martial law and precautionary martial law. Article 77, Section 1, details that martial law may only be declared when it is “required to cope with a military necessity or to maintain the public safety.” In this instance, President Yoon declared extraordinary martial law which suspended all political activities, granted presidential control of the media, and gave him the Constitutional authority to “[restrict] the freedom of speech, publication, assembly and association” and to implement “special changes to the authority of governments or courts and a warrant system in accordance with the provisions of related laws.”
It is my view that the Constitutional Court should uphold the rule of law and impeach President Yoon for unconstitutionally declaring martial law. While President Yoon’s attempted insurrection failed spectacularly, it does not diminish the gravity of his actions. As outlined in Article 77, an extraordinary declaration of martial law can only be justified by a national emergency. The Court must assess whether the martial declaration was an “unavoidable measure to preserve the democratic order.” President Yoon’s declaration plainly fails to meet this standard. President Yoon’s attorneys argued that his declaration was constitutional because he was attempting to prevent a “legislative dictatorship.” But there is no rational interpretation of the facts that could justify President Yoon’s actions. The legislature was not attempting to establish a dictatorship by investigating the first lady’s alleged corruption, impeaching the chief prosecutor and chief of the state audit agency, and rejecting budget bills; the legislature was simply doing its job. As such, the first criterion for impeachment is satisfied because President Yoon’s declaration was both illegal and unconstitutional.
President Yoon’s defense argues that even if the Constitutional Court finds that his action was illegal or unconstitutional, it was not a severe enough offense to impeach. Previous impeachment proceedings suggest that the violation must seriously undermine democratic order to satisfy the second criterion for impeachment. In 2004, the Constitutional Court dismissed the impeachment of President Roh Moo-hyun. The Court held that although President Roh violated the Constitution and law, satisfying the first criteria for impeachment, his violation of the Public Official Election Act was not severe enough to impeach him. However, President Yoon’s violations are magnitudes more severe than that of President Roh. President Yoon’s undue declaration of extraordinary martial law is a direct attack on democratic order. In addition to his impeachment case, President Yoon is simultaneously being tried in criminal court for insurrection. Insurrection is such a serious matter in South Korea, that it is one of the only charges where presidents are not entitled to immunity and it is punishable by life imprisonment or death.
South Korea’s highly anticipated impeachment decision will be massively consequential. If the Constitutional Court reinstates President Yoon, the court will undermine the law and betray the public’s trust. The Court’s decision would signal to every president thereafter that they too are above the law. Nevertheless, I would expect citizens all over South Korea to stand in protest, just as they did on December 3, 2024, when President Yoon declared martial law.
