South Korean politics has been thrown into turmoil following President Yoon Suk-yeol’s martial law fiasco, leaving the nation in a state of uncertainty.
On December 7, the first attempt to impeach Yoon faltered after the ruling People Power Party (PPP) staged a mass boycott. While it seemed the president had left his political fate in his party’s hands, that shifted dramatically on December 12. In a nationwide address, Yoon dismissed allegations of insurrection and made clear his determination to fight his legal challenges head-on.
But with investigations intensifying and another impeachment vote looming on December 14, Yoon finds himself in an increasingly volatile position.
In an exclusive interview, Professor Jang Young-soo of Korea University Law School deciphered the legal and political predicaments surrounding the South Korean leader. Jang is a leading authority on constitutional law in South Korea.
What can we expect if Yoon survives the impeachment vote on Saturday?
Many initially believed President Yoon would delegate greater authority to the prime minister and adopt the so-called responsible prime minister system. However, on December 12, President Yoon delivered a new address and took an active role in Cabinet affairs, signaling otherwise.
At the moment, it cannot be said that he has truly transferred power to the prime minister. If he has, he retains the ability to reclaim it at any moment, which fuels uncertainty.
Historically, under President Kim Dae-jung, the DJP [Democratic Justice Party] coalition saw President Kim and Prime Minister Kim Jong-pil sharing authority in a political coalition. At the time, Prime Minister Kim, who wielded significant power, demanded and was granted the ability to appoint half of the Cabinet positions. If the impeachment vote fails again, South Korea could move in a similar direction.
But given the current sentiment within the Democratic Party and the ruling party, there is a strong likelihood that the impeachment motion will pass on Saturday.
What happens if the National Assembly impeaches Yoon?
If parliament votes to impeach President Yoon, his powers will be suspended, but he will remain in office until the Constitutional Court issues its ruling. If the court upholds the impeachment, Yoon will be removed from office, and the prime minister will assume his duties, as was the case with Park Geun-hye. If the court rejects the impeachment, Yoon will be reinstated, much like what happened with Roh Moo-hyun.
Since the people do not directly elect the South Korean prime minister, their democratic legitimacy is relatively limited. This raises questions about the scope of the prime minister’s authority. For example, it would be virtually impossible for the prime minister to drastically shift established economic or foreign policies.
What are the key issues the Constitutional Court will consider?
According to Article 65(1) of the South Korean Constitution, two criteria must be met for presidential impeachment. First, the president’s actions must be related to the execution of his duties – personal matters unrelated to his role cannot be grounds for impeachment. Second, the president’s actions must be unconstitutional – partisan matters cannot serve as the basis for impeachment. In President Yoon’s case, these two requirements seem to have been fulfilled.
However, there is a third requirement consistently upheld in Constitutional Court precedents: the unconstitutional act must be sufficiently egregious to warrant removal from office. While most legal experts agree that Yoon’s emergency martial law declaration did not meet the criteria for a formal proclamation, whether it constitutes an impeachable offense remains a subject of debate.
So, whether Yoon’s martial law declaration constitutes insurrection would be debated.
Yes, that’s correct. Article 87 of the Criminal Code outlines two conditions for the crime of insurrection. The first is the act of usurping national territory – seizing control of all or part of South Korean territory by force, thereby preventing the normal exercise of state power. This condition does not apply to President Yoon’s case.
The other condition involves the act of subverting the constitution. Those who argue that President Yoon is guilty of insurrection contend that by declaring martial law, he effectively incapacitated parliamentary functions through force.
However, opponents say that if President Yoon had aimed to overthrow the National Assembly, he would have deployed a larger batch of martial law troops and taken more drastic measures, such as cutting off power and water or shutting down broadcasting. Furthermore, the fact that President Yoon immediately rescinded the decree after parliament voted it down is cited as evidence of a lack of intent.
Ultimately, it will be up to the Constitutional Court and criminal courts to decide.
What does “subverting the constitution” mean in a legal sense?
Article 91 of the South Korean Criminal Code defines subversion of the constitution in two categories. One involves neutralizing government organs by force, and the other involves undermining the constitution or laws. President Yoon’s case would fall under the former category.
Testimonies have surfaced that Yoon ordered the military to disrupt National Assembly voting.
The special warfare commander testified along the lines that President Yoon ordered him to block the parliamentary motion to overturn martial law. However, the presidential office has denied this claim, asserting that it is implausible the president would have contacted the commander during parliamentary voting to disrupt the proceedings, especially with everything being broadcast live. Given the starkly opposing accounts, further investigation will be necessary to clarify the situation.
How long will the Constitutional Court take to rule?
In the case of former President Park Geun-hye, the defense focused less on legal merits and more on contesting the fairness of her impeachment outside the courtroom, which may have contributed to the rather short deliberation [91 days]. In contrast, President Yoon seems committed to vigorously contesting his charges, indicating that the trial may take longer to reach a conclusion.
Both the police and prosecution are claiming jurisdiction over Yoon’s case. What does that mean for the investigation?
Initially, four agencies – the police, prosecution, Corruption Investigation Office for High-Ranking Officials, and the military – claimed jurisdiction over the case. Recently, all but the prosecution agreed to conduct a joint investigation. This collaborative approach is considered more efficient, preventing redundant efforts and reducing the burden on the individual under investigation. Including the prosecutor’s office in the joint investigation seems preferable, as multiple agencies repeatedly investigating the same person could raise concerns about potential violations of their human rights.
Can a sitting president be arrested or indicted?
Article 84 of the South Korean Constitution provides a sitting president immunity from criminal prosecution, except in cases of insurrection or incitement of foreign aggression. While it is theoretically possible to prosecute or arrest a sitting president, such actions must be approached with the utmost caution.
There is no precedent for prosecuting a sitting president, and scholars remain divided on the issue. It is widely regarded as a national embarrassment for the head of state to stand criminal trial, as it impacts national prestige and should not be undertaken lightly. An exception may arise if the president attempts to flee the country.
How would you interpret Yoon’s December 12 address?
President Yoon’s public address clearly signals his resolve to confront his legal case head-on in court.
Assuming Yoon is prosecuted and avoids impeachment, can he continue to govern?
Democratic Party leader Lee Jae-myung was convicted in his first trial, while Cho Kuk, leader of the Rebuilding Korea Party, was convicted on appeal, but both remained active in politics. Although, following the latest Supreme Court ruling, Cho will lose his seat [in the National Assembly]. Until now, individuals convicted of crimes have continued to serve as lawmakers. If a president facing a criminal trial cannot fulfill his duties, the issue of fairness will arise.
Under South Korean law, the maximum detention period is 20 days, after which an individual must be released if no indictment is made. Given that President Yoon’s case requires multiple investigations, securing an indictment within this timeframe seems unlikely. It seems improbable, therefore, that President Yoon could not continue his duties during this period. Remember, being under investigation does not equate to guilt.