Aftermath of impeachment: Will Yoon's 'act of governance' defense hold up in court?

By Baek Byung-yeul

President Yoon Suk Yeol's impeachment case has now been forwarded to the Constitutional Court, following the National Assembly's passage of a motion, Saturday, to oust him.

The court will determine whether to remove him from office and it remains to be seen how the justices will interpret the president's controversial Dec. 3 martial law declaration and legal defense.

In a televised address, Thursday, Yoon argued that his declaration was an "act of governance" and therefore cannot be considered as an insurrection, claiming it should be exempt from judicial review.

Given his stance, Yoon is likely to continue upholding this argument at the Constitutional Court, asserting that his martial law declaration was a legitimate act of governance within the president's authority.

Legal precedents

The Supreme Court and the Constitutional Court have repeatedly ruled that presidential actions, even if considered as acts of governance by the president, can be subject to judicial review if they are closely linked to the violation of citizens' basic rights or involve illegal actions that disrupt the constitutional order.

However, there are diverse opinions among experts in the legal and political fields regarding whether his Dec. 3 martial law declaration could be subject to charges of insurrection, leading to keen interest in how the Constitutional Court will judge this matter.

In 1997, the Supreme Court ruled that the declaration of martial law by disgraced former presidents Chun Doo-hwan and Roh Tae-woo during the military rebellion on Dec. 12, 1979, and through early 1981, was an act of governance. However, the court also noted that it could be subject to judicial review, as the martial law was imposed with the intent to disrupt the constitutional order.

Additionally, when a constitutional complaint was filed against a new financial transaction system implemented by former President Kim Young-sam to enhance transparency, the Constitutional Court ruled in 1996 that, even if it was an act of governance by the president, it could still be subject to review if it was directly related to the violation of citizens' basic rights.

Yoon argued that his declaration of martial law was a decision made based on the judgment that it was the only way to protect the nation's liberal democracy and constitutional order, rather than an act of insurrection.

"Viewing an emergency measure meant to protect the country as an act of insurrection, as many constitutional scholars and legal experts argue, puts our Constitution and legal system at serious risk," he said Thursday.

Weak rationale

Lee In-ho, a law professor at Chung-Ang University specializing in constitutional issues, said while the president's declaration of martial law could be considered an unconstitutional act, the rationale for punishing him does not hold.

"The argument that the president should be punished because the declaration of martial law was an unconstitutional act that failed to meet the necessary requirements does not stand," the professor wrote on Facebook.

"If the president should be punished for declaring martial law, then Assembly members who enact unconstitutional laws should also be punished," he further noted.

Act of insurrection

In contrast, Han In-sub, a law professor at Seoul National University, argued that Yoon's martial law declaration constituted insurrection.

He argued that the martial law declaration amounted to insurrection because, when the Assembly demands the lifting of martial law, the president is obligated to comply. However, soldiers operating under martial law attempted to block lawmakers' entry into the Assembly or prevent the convening of a meeting to vote against the emergency decree.

“Troops were actually mobilized to break the windows of the National Assembly and force their way in to prevent the Assembly’s demand for the lifting of martial law, while the police blocked lawmakers’ access," the professor wrote on Facebook.

"Multiple crimes, including insurrection and abuse of authority, are established, and can be added as grounds for impeachment of the president."

Rep. Yoon Sang-hyun of the ruling People Power Party, widely known as a Yoon supporter, cited a 2010 Supreme Court ruling to defend the president's martial law declaration.

"According to a 1997 Supreme Court ruling, martial law is considered an act of governance," he said during a parliamentary session on Wednesday.

"A 2010 Supreme Court ruling states that for such political decisions, the president's authority should be respected, and the constitutionality should be evaluated with judicial restraint."

However, the 2010 ruling actually stated that even acts of governance are subject to judicial review if they violate the Constitution or laws. The court emphasized the need for extreme caution in exempting political acts from judicial scrutiny and ultimately declared the emergency decree in question unconstitutional and invalid.

The presidential impeachment motion will now be sent to the Constitutional Court. This legal battle must conclude within 180 days, and if at least six justices agree, the president will be removed from office.