–Kwak Nohyun, former professor of law, Korea National Open University
On the night of December 3, 2024, South Korean democracy faced its most severe test since democratization. At 10:29 PM, President Yoon Suk Yeol declared an “extraordinary martial law,” triggering a swift and decisive response. This historic rebuke was made possible by a confluence of critical factors: the courageous citizens who rushed to the National Assembly to protest; the hesitant, lukewarm response from the troops on the site; the swift determination of opposition lawmakers, many of whom scaled the walls to enter the chamber; and the crucial cross-partisan consensus that saw 19 members of the president’s own party join the opposition. The motion to lift the martial law ultimately passed with an overwhelming majority just a few hours after its declaration.
While an immediate constitutional crisis was averted that night, the event served as a jarring stress test, forcing the nation to confront a series of critical institutional flaws that a full presidential impeachment process—which began with a successful parliamentary vote on December 14—would eventually expose. The political turmoil that followed laid bare the fragility of the system and ignited urgent debates over long-neglected legislative homework. The tyranny of the acting prime minister, the widespread anxiety over whether a minority of conservative-leaning justices on the Constitutional Court could block a potential removal of the president from office and the controversial nomination of new justices to that court during the political vacuum all became central public concerns.
This post analyzes the critical constitutional vulnerabilities revealed by this crisis and proposes a blueprint for structural reform. It addresses five fundamental questions that emerged from the fallout: First, when a president is impeached, who should be entrusted with presidential authority? Second, what are the legitimate powers of an unelected acting president, particularly the right to veto legislation? Third, is the Constitutional Court’s voting threshold for presidential removal democratically sound? Fourth, who should have the ultimate power to remove a president from office? Fifth, are the legislature’s checks on a president’s emergency powers sufficient?
1. Who Should Steer the Ship? The Problem of the Acting President
Under South Korea’s current Constitution, when the president’s duties are suspended following an impeachment vote, the Prime Minister automatically becomes the acting president. This creates a profound legitimacy problem. The Prime Minister is the president’s own appointee, the chief architect of the very administration whose leader was just impeached for grave constitutional violations. This allows a “president’s cabinet without the president” to persist, led by a figure who is essentially the president’s “avatar”. This undermines the very purpose of the suspension, which is predicated on the loss of democratic legitimacy.
The solution is to amend the constitution to distinguish between a vacancy caused by the president’s fault (impeachment) and one without fault (e.g., illness). In the case of impeachment, presidential authority should not pass to a subordinate but to the head of the legislative branch—the Speaker of the National Assembly. This would signify that the executive branch has temporarily entered a form of legislative receivership, ensuring that the caretaker government is not led by a proxy of the disgraced president.
2. The Caretaker’s Veto: An Illegitimate Power
The problem of the acting president is compounded by the question of its powers. During the impeachment crisis, the acting president repeatedly used the presidential veto to block major legislation passed by the opposition-led National Assembly, including bills to appoint special prosecutors on the charges involving the suspended president, his wife, or both.
An acting president, being an unelected appointee, lacks the independent democratic mandate that justifies the formidable power of a veto over the legislature’s work. The presidential veto is a political tool designed to check the legislature, premised on the president’s own electoral connection to the people. Allowing an acting president to wield this power enables a “zombie government” to continue the political battles of its impeached leader, creating legislative gridlock. The presidential veto power should not be allowed to an unelected caretaker; instead, if the acting president believes a law is unconstitutional, the power should be limited to requesting a review by the Constitutional Court.
3. The Tyranny of the Minority: Reforming the Court’s Impeachment Quorum
The current constitutional rule for presidential impeachment decisions is fundamentally flawed. It requires a supermajority of six out of nine Justices on the Constitutional Court to upholda parliamentary impeachment resolution anddefinitively remove a president from office. This effectively grants a “rejection privilege” to a minority of just four Justices, allowing them to overturn the will of a two-thirds supermajority of the people’s representatives. In a court with one vacancy, as was the case in the crisis, only three justices were needed to block the impeachment.
This logic is inconsistent with the Court’s own standards in other areas. When reviewing legislation, the Court presumes a law passed by the National Assembly is constitutional and requires six votes to strike it down. By the same principle, an impeachment motion passed by a two-thirds supermajority of the legislature should be presumed valid. Therefore, the rule should be inverted: a supermajority of six votes should be required to reject the impeachment, not to confirm it. This would properly respect the historic decision of the National Assembly while still providing a judicial backstop.
4. The Final Say: Empowering the Sovereign
The impeachment crisis has ignited a more fundamental debate: why should nine unelected judges have the final say on the fate of a directly elected president? This question is particularly acute when the Constitutional Court itself is perceived as biased towards the executive, given that the president directly or indirectly influences the appointment of a majority of the justices.
The ultimate power to remove a national leader should reside with the sovereign—the people. The most democratic solution is to combine the legislative and direct democratic models. Once the National Assembly passes an impeachment resolution, the final decision should be put to a national referendum within a set time frame, such as three months. This would ensure the final verdict has undeniable democratic legitimacy and would resolve the political crisis decisively. For non-elected officials (such as judges or ministers), the final decision could be entrusted to a Citizens’ Assembly, a “mini-public” of randomly selected citizens who deliberate after intensive learning. This would replace the judgment of legal elites with that of informed citizens, breaking the cycle of judicial self-protection.
5. Taming Martial Law: From Reaction to Prevention
Finally, the crisis revealed the terrifying inadequacy of the current checks on the president’s power to declare martial law. The constitution allows the National Assembly to demand the lifting of martial law with a simple majority vote. However, in a typical political alignment where the president’s party holds more than half the seats, overriding the president’s decision is practically impossible.
The check on such an extraordinary power must be preventative, not reactive. The constitution should be amended to require prior consent from a two-thirds supermajority of the National Assembly before martial law can be declared. For true emergencies where the Assembly cannot convene, such as a sudden invasion, the president could act first but would be required to obtain two-thirds approval within a short period (e.g., 72 hours) for the order to remain valid. This would ensure that the power to suspend civil liberties cannot be used as a political tool to suppress domestic opposition.
In conclusion, South Korea’s impeachment is more than a political drama; it is a constitutional X-ray that exposes fractures in the democratic foundation. The prescriptions outlined here—reassigning caretaker authority, limiting the veto, reforming the court’s quorum, empowering citizens with the final say, and requiring prior legislative consent for martial law—are not minor tweaks. They are a necessary blueprint for a more resilient and legitimate democratic order, designed to ensure that such a crisis, if it ever recurs, is met with a Constitution that is prepared.
Suggested citation: Kwak Nohyun, South Korea’s Impeachment Tests: A Blueprint for Constitutional Repair, Int’l J. Const. L. Blog, Jul. 27, 2025, at: http://www.iconnectblog.com/south-koreas-impeachment-tests-a-blueprint-for-constitutional-repair/
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