South Korea's Constitutional Court should uphold Yoon's impeachment

Asia Times

25-03-2025

Although the impeachment ruling in the case of South Korean President Yoon Suk Yeol remains delayed, the Constitutional Court of South Korea, on March 24, made a decision to dismiss the impeachment of Prime Minister Han Duck-soo.
The reasoning for 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 presidential removal.
In Roh's impeachment case in 2004, the court recognized that the then-president had violated the election law through breach of his duty of electoral neutrality. However, it concluded that this violation was not severe enough to warrant impeachment and dismissal.
These cases demonstrate that a key legal issue in impeachment trials is determining whether the act in question violates the Constitution and laws – and, if so, whether the severity of the violation justifies impeachment.
So, what constitutional issues are involved in Yoon's impeachment trial? Some have expressed concerns that, as in Han's case and Roh's cases, Yoon's impeachment could 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 President Roh's impeachment and carries a clear constitutional violation, making it sufficient grounds for impeachment.
The martial law declaration of December 3, 2024, clearly violates constitutional requirements both procedurally and substantively. This violation is not merely a breach of law but a significant unconstitutional act that threatens the Constitution and the democratic order, and it justifies the removal of the president.
The government argues that the martial law declaration was an unavoidable measure to counteract the legislative dictatorship of the Democratic Party, 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 two criteria: Procedural legality: This criterion evaluates whether the martial law declaration meets constitutional and legal requirements. In other words, it examines whether certain conditions (outlined in Article 77 of the Constitution and in relevant laws) – such as the existence of a national emergency that threatens the survival of the nation, akin to wartime conditions or an emergency – are met. However, President 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 extreme conditions that threaten the nation's survival.
This criterion evaluates whether the martial law declaration meets constitutional and legal requirements. In other words, it examines whether certain conditions (outlined in Article 77 of the Constitution and in relevant laws) – such as the existence of a national emergency that threatens the survival of the nation, akin to wartime conditions or an emergency – are met. However, President 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 extreme conditions that threaten the nation's survival. Substantive necessity: This 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 the problem 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, President 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.
Citing the impeachment of government officials, investigations into the first lady's corruption, and the party's attempts to paralyse government functions through the rejection of budget bills, the Yoon defense argues that martial law was necessary to prevent the legislative dictatorship of the Democratic Party. However, those actions are simply part of normal political contention and do not threaten the public welfare or the nation's order.
In other words, the Democratic Party's activities are part of the democratic process and cannot be construed as a legitimate reason to declare martial law.
To justify impeachment in South Korea, two primary considerations must be met:
First, the president's actions must clearly violate the Constitution and laws. Yoon's defense claims that all conditions for impeachment have not been met. Yoon argues that the declaration of martial law was a necessary constitutional measure to address an emergency situation and, as such, was legally conducted and did not seriously undermine constitutional order. Furthermore, even if martial law is found to violate Article 77, Yoon argues, such a violation does not constitute a 'grave' offense that justifies impeachment.
As demonstrated above, however, 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 the impeachment trial is the second criterion, the severity of the legal violation. The violation must be so severe that it undermines the democratic order. 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 Roh case, the Constitutional Court found that although the then-president had 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.
In contrast, the martial law Yoon declared 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 Assembly will be unable to carry out its original role, making it impossible to lift martial law. This will 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 outlined in the case of the dismissal of Roh's impeachment may be referenced in Yoon's impeachment trial, in Yoon's 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.
Ultimately, the impeachment trial and the martial law declaration are not just political events; they are critical constitutional matters that determine the future of democracy in South Korea. Dismissing the impeachment and justifying martial law 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 a president 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.
Taehyeon Kim is a licensed attorney in the state of New York. She is currently pursuing a PhD in Law at the University of Edinburgh.