Separation of Powers Defeats Imperial Presidency in South Korea

John Delury is a visiting professor of political science and international affairs at John Cabot University in Rome and the author of Agents of Subversion: The Fate of John T. Downey and the CIA's Covert War in China (Cornell, 2022).

On the fateful night of December 3, South Korea’s president shattered a basic norm of democratic power-sharing and civilian rule. Yoon Suk Yeol’s bolt from the blue declaration of martial law triggered a four-month-long constitutional crisis in the Republic of Korea (ROK) that was finally resolved last week by the decision of the Constitutional Court to uphold the National Assembly’s impeachment. Thanks to the combination of citizen action, legislative resolve, and judicial review, democratic institutions proved their resilience. In the end, the rule of law—including, ironically, the law governing martial law—restored the norm that Yoon had broken, and South Korean democracy probably came out of the crisis stronger than it was going in. The question of leader accountability, however, will only be answered in the fullness of time, as the former president now goes on trial for the crime of insurrection.

Yoon’s martial law gambit was literally a “coup” in that he tried to strike a quick blow at the opposition-led National Assembly, making his unprompted announcement live on late-night TV and sending police and soldiers to shut down the legislature. And yet, on paper, he seemed to have a legal basis for the shocking declaration. That is because the ROK Constitution, unlike many liberal democracies (including the United States), explicitly grants the president the power to declare martial law. Korean leaders with autocratic instincts had imposed martial law numerous times since the founding of the republic in 1948—most recently in 1980 during the Gwangju massacre. When the Constitution was revised as part of the democratic transition in 1987, rather than prohibit martial law outright, Article 77 dictated substantive and procedural requirements around its imposition and lifting. The Martial Law Act, amended as recently as 2017, further delineated these legal strictures.

Since Korea’s democratic transition in 1987, the norm solidified that a president would not invoke Article 77 except in the direst circumstances of a war or war-like emergency. No matter how tense the situation with a nuclear-armed North Korea, no matter how grave the risk to public health during COVID-19, neither liberal nor conservative presidents contemplated imposing martial law. Thus, when allegations surfaced last summer that the Yoon administration was toying with the idea, it seemed so preposterous that few believed it. Norm-shattering is like that—mainstream opinion-makers don’t see it coming precisely because they are thinking within the norm.

Although the public was blindsided by Yoon’s announcement, the response of legislators, along with many citizens, proves you can be shocked but still know what to do. In two iconic moments on the night of the decree, sixty-seven-year-old Speaker of the National Assembly Woo Won-shik was photographed climbing a tall fence to evade police so he could access the building, while thirty-five-year-old lawmaker An Gwi-ryeong was videotaped grabbing the muzzle of a soldier’s rifle and yelling at him, “Are you not ashamed?” Like many others that night, they embodied the last three lessons in historian Timothy Snyder’s handbook for resisting tyranny: be calm when the unthinkable arrives, be a patriot, and be as courageous as you can. Their heroism dramatically reaffirmed the norm that what was happening was unacceptable.

In a struggle to defend something as abstract as constitutional democracy and the rule of law, however, it is not enough to act quickly and bravely. At certain junctures, it is necessary to act slowly, methodically, and deliberately. Facing real political and personal peril, with special forces sweeping through the corridors of the National Assembly (not unlike what U.S. congresspeople faced on January 6), Speaker Woo slowed proceedings in the chamber just long enough to ensure the legislative procedure was followed. Around 1:00 a.m., the resolution to invalidate martial law was passed unanimously by the 190 lawmakers who made it to the floor, including eighteen members of the president’s own party. The Assembly’s resolution compelled Yoon to lift martial law at 4:30 a.m.

After the six-hour standoff between the executive and legislative, it then took eleven days for the National Assembly to pass a motion of impeachment. This was the legislative branch’s second major test—was there sufficient bipartisanship, despite a bitterly divided political climate, to cobble together the supermajority needed for presidential impeachment? On the first scheduled vote, the president’s party boycotted the session. That failure to impeach triggered huge public demonstrations, as masses of citizens rallied in the streets, demanding that the legislature take action. As more details of the martial law plot came to light in the following week, the Assembly voted again on a motion. The president’s party leadership opposed impeachment but ended the boycott, allowing members to attend the session to vote their conscience in a secret ballot on December 14. Twelve of the president’s party defected, and the impeachment passed with 204 of 300 votes.

When it counted, Korea’s legislature defended its authority and integrity against an existential attack by the executive, generating the two-thirds needed to put the ultimate check on the president by declaring him unfit to serve. This supermajority proved fleeting, and the National Assembly quickly reverted to its polarized ways, with the liberal majority and conservative minority blocking each other’s actions as best they could. Disagreement can be frustrating, but it is, after all, inherent to democratic politics—precisely the messy give-and-take that Yoon sought to override with his martial law decree.  

Finally, it was the judiciary’s turn, given that Korea’s impeachment process requires the Constitutional Court to adjudicate the Assembly’s decision in accordance with constitutional principles. Observers anticipated a swift decision by the Court to uphold removal from office. This expectation was based on the timeframe of previous impeachment trials in 2004 and 2017 and the view that the legal case for Yoon’s removal was open and shut. When the Court exceeded that timeline, the public became seized with anxiety over the outcome. In the long run, the Court may have enhanced the credibility of the final ruling, as the eight justices on the bench could hardly be accused of rushing to judgment. Indeed, the Court did precisely what Yoon had not: they took time for “deliberation” (as the Martial Law Act requires of the President and Cabinet before imposing martial law) and arrived at an informed and unanimous decision.

The stinging clarity of Chief Justice Moon Hyung-bae’s statement on April 4, laying out the claims of the president’s legal team, the facts of the case, and the laws of the land, left no doubt that the Assembly was well within its authority to impeach Yoon. The president attempted to undermine the basic principle of democracy, explained by Justice Moon as “based on cooperative public decision-making based on respect among equal fellow citizens.” To throw Korean democracy back into the dark days of military government was to violate that respect and replace cooperative decision-making with autocracy. After months of rival protests, with a vocal minority of hard-core Yoon supporters making themselves heard, Korea’s democratic crisis ended with a voice of reason reading out a definitive ruling by the judiciary to uphold the will of the legislature that the president should be removed from office.

At a disconcerting moment of global democratic backsliding, Korea provides an instructive case of how basic norms of the rule of law and constitutional democracy can be restored. It took a fortuitous convergence of civic action and institutional resolve. The question of presidential accountability, however, does not end with his removal from office. The scene now shifts to Yoon’s trial for the high crime of insurrection. Judges, along with the general public, will be scrutinizing the evidence once again to determine the scale of his wrongdoing and the intent behind his deeds. Meanwhile, voters have two months to choose a new president, hoping this time they pick someone who will respect the iron law of the Constitution, “The Republic of Korea shall be a democratic republic.”