President Yoon Suk-yeol said in a statement on Dec. 12 that the exercise of the president’s authority to declare martial law is a political act and, like granting pardons or conducting diplomacy, is not subject to judicial review.
He also noted that martial law is a matter of high-level political judgment by the president and can only be controlled through a parliamentary resolution to lift it, referencing court precedents and the majority view of constitutional scholars.
Yoon’s recent declaration of martial law has sparked debate, with some arguing that it cannot simply be shielded as a political act under the Constitution if it involves illegal elements.
However, the assertion that martial law is inherently a “political act” recognized for its highly political nature is broadly accepted. The S. Korean Supreme Court, in a 1979 case involving Kim Jae-kyu, the former head of the Korean Central Intelligence Agency who assassinated President Park Chung-hee, ruled that “the president’s declaration of martial law is a political and military act of the highest order, and its legitimacy can only be judged by the National Assembly, which has the authority to revoke it.” The court added that judicial review of such actions would exceed the inherent limits of judicial authority.
Similarly, in a 1996 ruling on financial reform measures, the Constitutional Court stated that “Actions stemming from high-level political decisions are considered political acts and should be respected as such, given their nature as decisions requiring significant political judgment and discretion.”
However, questions have arisen over whether Yoon’s martial law declaration can be deemed a legitimate political act given alleged illegalities surrounding the decision. Constitutional scholars have stressed that “even actions considered political must follow the limits set by the Constitution, and if they go beyond those limits, they can be reviewed and judged by the courts.”
Lee Hwang-hee, a professor at Sungkyunkwan University’s School of Law, explained, “If a political action violates citizens’ fundamental rights, it can’t be seen as legitimate. It’s the court’s role to judge whether such an action infringes on basic rights or oversteps the powers of other government bodies.”
Noh Hee-beom, a former research officer at the Constitutional Court and now an attorney, added, “Presidential actions considered political acts, like former President Kim Dae-jung’s engagement policy with North Korea or former President Roh Moo-hyun’s decision to deploy troops to Iraq, are given discretion because they don’t have specific constitutional conditions. In contrast, martial law declarations are strictly defined by the Constitution, limited to situations like ‘wartime, emergencies, or similar national crises.’”
The Supreme Court also addressed the issue in its 1997 ruling on the 12/12 military coup and the Gwangju Uprising, involving former presidents Chun Doo-hwan and Roh Tae-woo. The ruling stated that if martial law is declared or extended for unconstitutional purposes, the courts have the power to decide whether it qualifies as a criminal act.
In his Dec. 12 remarks, President Yoon accused the opposition party of engaging in two years of unrelenting efforts to oust him through impeachment and calls for his resignation. He described the situation as a combination of legislative gridlock and a national crisis. Legal experts, however, argue that it is the court’s role to determine whether such actions infringe on basic rights or overstep the powers of other government institutions.
However, Hur Young, an honorary professor at Kyung Hee University’s School of Law, noted, “The power to declare martial law is one of the president’s emergency powers as outlined in the Constitution. Therefore, the president alone has the authority to decide whether the current situation constitutes an emergency. Even if that decision differs from the public’s expectations, the president, as the representative of the people under a democratic system, must make that judgment independently and bear responsibility in accordance with their conscience.”
