How South Korea's constitution empowered Parliament to overturn martial law

Article 77 of South Korea's Constitution grants the president the authority to impose martial law during severe national emergencies. But lawmakers can repeal it through a parliamentary vote

The recent declaration of martial law in South Korea by President Yoon Suk Yeol has raised questions regarding its constitutional basis and the circumstances that allowed such a move. On December 3, 2024, President Yoon made the announcement in a televised address, claiming it was necessary due to threats posed by opposition parties allegedly involved in ‘anti-state activities’ that endangered democracy and national security. He equated these activities to an insurrection against the government. 

 

This declaration was the first instance of martial law in South Korea since the 1980s, a period when the nation shifted from military rule to a democratic system. Under the recent martial law, military authorities were empowered to restrict political activities, regulate media operations, and compel striking healthcare workers to resume duties within 48 hours. 

 

However, this decision faced immediate resistance from lawmakers and citizens alike. The National Assembly of South Korea quickly convened an emergency session and overwhelmingly voted to overturn the decree, deeming it unconstitutional and an overextension of presidential authority. According to South Korean law, if the National Assembly votes to rescind martial law, the president is obliged to comply.

 

Article 77 of South Korea’s Constitution grants the president the authority to impose martial law during severe national emergencies, such as war or armed conflict, to restore order and ensure safety. This provision permits the deployment of military forces and the restriction of civil liberties, including freedoms of speech and assembly, when deemed essential for national security. Nonetheless, the Constitution also includes mechanisms to limit the president’s powers and ensure checks and balances.

 

How did South Korean Parliament challenge martial law? 

South Korea’s National Assembly holds specific powers to counter a martial law declaration. As demonstrated in the recent case, lawmakers can vote to repeal such a declaration, forcing the president to revoke it if a majority opposes it. Following President Yoon’s announcement, the Assembly swiftly convened and voted 190-0 to reject the martial law order, effectively nullifying it.

 

Parliament can also initiate impeachment proceedings if there is substantial support among its members. Impeachment requires a two-thirds majority vote in the 300-member Assembly. In response to Yoon’s controversial actions, opposition leaders called for his resignation and expressed readiness to pursue impeachment if necessary.

 

Evolution of democracy in South Korea 

Established in 1948, after the Korean Peninsula’s division post-World War II, South Korea has undergone extensive constitutional changes that redefined the balance of power among its executive, legislative, and judicial branches. Initially characterised by strong presidential control and authoritarianism, the political system remained centralised until the landmark democratic transition in 1987. This transformation, accompanied by significant constitutional reforms, paved the way for a participatory and accountable government.

 

The 1987 Constitution and the Sixth Republic 

The adoption of the 1987 Constitution marked the establishment of the Sixth Republic, cementing South Korea’s transition to democracy. Key reforms included the introduction of direct presidential elections, enabling citizens to elect their leader through a popular vote, and limiting the presidency to a single, non-renewable five-year term to prevent prolonged power concentration.

 

While the president retained emergency powers to address national crises, these powers were constrained by the requirement of parliamentary approval, ensuring a system of checks and balances. Impeachment provisions also strengthened legislative oversight, as demonstrated in the historic impeachment of President Park Geun-hye in 2016, which was upheld by the Constitutional Court of Korea.

 

Which other countries have similar provisions? 

The US Constitution establishes a system of checks and balances among the executive, legislative, and judicial branches. The president can be impeached by Congress, and legislative powers include the ability to override vetoes and control budgetary matters.

 

Additionally, Brazil’s constitution allows for legislative oversight of presidential actions, including the ability to impeach the president. The Brazilian Congress can also override presidential vetoes, ensuring that executive power is balanced by legislative authority.

 

In France’s semi-presidential system, both the president and parliament have significant powers. The National Assembly can censure the government, leading to its resignation, which acts as a check on presidential authority.

 

Whereas, Germany’s Basic Law (1949) provides for strong parliamentary control over the executive branch. The Bundestag (parliament) can pass votes of no confidence against the chancellor, limiting executive power significantly.

 

Meanwhile, India’s Constitution provides for a parliamentary system where the Prime Minister (executive) is accountable to Parliament. Legislative bodies have the power to remove the Prime Minister through no-confidence motions, ensuring checks on executive authority.