While the impeachment ruling for South Korean President Yoon Suk-yeol remains delayed, on March 24 the Constitutional Court made a decision to dismiss the impeachment of Prime Minister and Acting President Han Duck-soo on March 24.
The court’s reasoning in dismissing Han’s impeachment shows parallels to the dismissal of former President Roh Moo-hyun’s impeachment in 2004. In both cases, the Constitutional Court acknowledged the violation of the law by the accused but found that the violations were not serious enough to justify removal. In Roh’s impeachment case in 2004, the court recognized that he violated the election law by breaching the duty of electoral neutrality. However, it concluded that this violation was not severe enough to warrant impeachment and dismissal. Similarly, in Han’s case the court ruled that, while Han had violated the South Korean Constitution by refusing to appoint justices nominated by the National Assembly to the Constitutional Court, it was not a grave enough offense to justify impeachment.
These cases demonstrate that there are two key legal issues in impeachment trials: first determining whether the act in question violates the constitution and laws, and, if so, whether the severity of the violation justifies impeachment.
Some have expressed concerns that, like Han and Roh, President Yoon’s impeachment could also be dismissed. However, the issues surrounding Yoon’s impeachment are fundamentally different from the previous cases. The most important distinction is the gravity of the issue. The declaration of martial law goes beyond mere legal violations; it is a direct abuse of presidential powers and a violation of the people’s fundamental rights, posing a severe threat to democratic governance. This is far more serious than the issues surrounding Roh’s or Han’s impeachment and carries a clear constitutional violation, making it sufficient grounds for impeachment.
The martial law declaration of December 3, 2024, clearly violated constitutional requirements both procedurally and substantively. This violation was not merely a breach of law but a significant unconstitutional act that threatened the constitution and the democratic order, and thus it justifies the removal of the president. The Constitutional Court must uphold democracy and the rule of law through its impeachment judgment.
So, what constitutional issues are involved in the impeachment trial of President Yoon Suk-yeol?
Martial Law Declaration: Compliance With Constitutional Requirements
In the impeachment trial of Yoon, the government argued that the martial law declaration was an unavoidable measure to counteract the legislative dictatorship of the Democratic Party (DP), the opposition in South Korea. However, this claim lacks substantial grounding and fails to meet the criteria set forth in Article 77 of the Constitution in South Korea. The justification for martial law must be evaluated based on procedural legality and substantive necessity.
The “procedural legality” criterion evaluates whether the martial law declaration meets the constitutional and legal requirements. In other words, it examines whether the conditions outlined in Article 77 of the constitution and relevant laws – such as the existence of a national emergency that threatens the survival of the nation, akin to wartime conditions – are met. However, Yoon’s claim of an “opposition-led legislative dictatorship” does not meet the constitutional requirement of a national emergency. The situation presented does not approach the level of extreme conditions that threaten the nation’s survival.
The “substantive necessity” criterion assesses whether the martial law declaration was an unavoidable measure to preserve the democratic order. It questions whether the political order was at risk of collapse to the extent that it could not be remedied by existing legal or administrative means. Martial law cannot be justified simply by political disagreements or opposition to government checks. Article 77 of the Constitution specifies that military intervention is a last resort to restore order. However, Yoon’s declaring martial law to address opposition political activities is merely a political maneuver. In a democracy, political disputes should be resolved through the legislature and judiciary, not through military intervention. If military action is employed for political purposes, it violates the principle of political neutrality outlined in Article 5 of the Constitution.
Yoon’s defense argued that martial law was necessary to prevent the legislative dictatorship of the DP, citing the impeachment of government officials, investigations into the first lady’s corruption, and the party’s attempts to paralyze government functions through the rejection of budget bills. However, these actions are simply part of normal political contention and do not threaten the public welfare or the nation’s order. The DP’s activities are part of the democratic process and cannot be construed as a legitimate reason to declare martial law.
Criteria for Constitutional Impeachment
To justify impeachment in South Korea, two primary considerations must be met: first, whether the president’s actions clearly violate the constitution and laws, and second, whether the violation is so severe that it undermines the democratic order.
Yoon’s defense claimed that none of the conditions for impeachment have been met. He argued that the declaration of martial law was a necessary constitutional measure to address an emergency situation. As such, the process was legally conducted and did not seriously undermine constitutional order. Furthermore, even if martial law is found to violate Article 77 of the Constitution, Yoon argued that such a violation does not constitute a “grave” offense that justifies impeachment.
As argued above, the martial law declaration on December 3, 2024, did not meet the constitutional criteria for necessity, and its procedural legality is questionable. Therefore, there is no valid justification for martial law in this case. Accordingly, the key issue in determining the legitimacy of Yoon’s impeachment trial is the “severity” of the legal violation.
Impeachment requires not just an unconstitutional act but a violation that seriously undermines the democratic order. In other words, even if a president violates the constitution or laws, the severity of the violation must be significant enough to justify impeachment as a remedy. In the 2004 case involving Roh, the Constitutional Court found that although the president violated the election law, his actions did not warrant the extreme measure of impeachment, as the violation did not affect the nation’s governance to such an extent. The court established in Roh’s case that impeachment requires not only a legal violation but also a violation that fundamentally undermines the principle of popular sovereignty and the constitutional order. As noted above, the court used similar reasoning to dismiss the impeachment of Han Duck-soo.
In contrast, the martial law declared by Yoon on December 3, 2024, represents more than just a legal violation. The Martial Law Command Proclamation No. 1 issued by General Park An-soo, the martial law commander at the time, explicitly prohibited all political activities, including the activities of the National Assembly, local assemblies, political parties, and political associations, as well as gatherings and demonstrations. This was an attempt to suspend the functions of the National Assembly and local assemblies, which are core institutions of democracy, and it constitutes a clear illegal act that violates constitutionally guaranteed fundamental rights and democratic decision-making processes.
Article 77, Section 5 of the Constitution and Article 13 of the Martial Law Act each grant the National Assembly the authority to lift martial law and guarantee the parliamentary immunity of lawmakers. If the president uses martial law to prohibit the activities of the National Assembly, the legislature would be unable to carry out its original role, making it impossible to lift martial law. This would result in the president holding the sole authority to lift martial law, effectively dismantling the democratic system of the country and the principle of separation of powers.
While the principles that led to the dismissal of Roh’s impeachment may be referenced in Yoon’s impeachment trial, in his case, the act of declaring martial law should be considered a severe unconstitutional act as it directly threatened the constitution and democratic order. Therefore, the possibility of his impeachment being upheld rather than dismissed should carry greater weight.
The Importance of Safeguarding Democracy
Ultimately, Yoon’s impeachment trial and the martial law declaration are not just political events; they are critical constitutional matters that will determine the future of democracy in South Korea. If the impeachment is dismissed and martial law is justified, it would signal a dangerous regression for democracy and could lead to an abnormal expansion of presidential powers.
Therefore, the Constitutional Court must make a clear legal judgment and issue a ruling that upholds democratic principles. Only by doing so can the separation of powers be preserved, and the constitutional order be maintained. The Constitutional Court must take careful, responsible action in reviewing the violations of the constitution committed by Yoon, who has lost the public’s trust. By doing so, the court can play a crucial role in safeguarding the values of democracy and the rule of law.
