FALQs: South Korean Martial Law

The following is a guest post by Sayuri Umeda, a foreign law specialist who covers Japan and other countries in East and Southeast Asia in the Global Legal Research Directorate of the Law Library of Congress. Sayuri has previously authored numerous posts for In Custodia Legis, including Food Delivery in Japan – History and Current Regulation; Tradition vs Efficiency: ‘Hanko’ Affects Workplace Efficiency and Telework in Japan; The History of the Elimination of Leaded Gasoline; The Law Library’s New Report on Public Prosecution Reform in South Korea; Law Library’s New Report Reviews Foreign Ownership of Land Restriction in Major Economies; FALQs: The Conscription System of South Korea; and many more!

At 10:30 p.m. on December 3, 2024, South Korean President Yoon Suk Yeol declared emergency martial law for the first time in 40 years and lifted it at 2:30 a.m. on December 4, 2024, after the National Assembly voted to recommend its lifting to the president.

1. What is martial law?

South Korea’s Constitution (Constitution No. 10, Oct. 29, 1987) and the Martial Law Act (Act No. 3442, Apr. 17, 1981, as amended) do not define martial law. According to the Merriam-Webster dictionary, it is “the law administered by military forces that is invoked by a government in an emergency when civilian law enforcement agencies are unable to maintain public order and safety.” The constitution states “[w]hen it is required to cope with a military necessity or to maintain the public safety and order by mobilization of the military forces in time of war, armed conflict or similar national emergency, the President may proclaim martial law.” (Constitution, art. 77, para. 1.)

Korean laws provide two types of martial law: extraordinary martial law and precautionary martial law. (Constitution art. 77, para. 2; Martial Law Act, art. 2, para. 1.):

• Emergency martial law is to fulfill military necessity or maintain public security and order when there are belligerents or serious disturbances of social order that considerably impede the performance of the administrative and judicial functions of the state in time of war, incident, or other equivalent national emergency.
• Precautionary martial law is to maintain public security and order when the social order is so disturbed that civil administrative authorities cannot preserve public peace in times of war, incident, or another equivalent national emergency. (Martial Law Act, art. 2, para. 2, 3.)

Under extraordinary martial law, arrest and search without a warrant, and restriction of freedom of speech, the press, assembly, and association may be allowed. (Constitution, art. 77, para. 3.) In this case, President Yoon declared emergency martial law, “accusing the nation’s opposition of paralyzing the government with ‘anti-state activities plotting rebellion.’”

2. What is the procedure for declaring martial law?

Before the president declares martial law, he or she must deliberate the matter with the State Council. (Constitution, art. 89, item 5; Martial Law Act, art. 2, para. 5.) The State Council, usually referred to as the cabinet, consists of the president, the prime minister, and other ministers. (Constitution, art. 88, para. 2.) The prime minister is appointed by the president with the consent of the National Assembly. (Id. art. 86, para. 1.) The members of the State Council are appointed by the president on the recommendation of the prime minister. (Id. art. 87, para. 1.)

3. What power does the National Assembly have over the imposition of martial law?

When the president has proclaimed martial law, he or she must notify the National Assembly without delay. (Constitution, art.77, para. 4; Martial Law Act. art. 4, para. 1.) When the National Assembly requests the lifting of martial law with the concurrent vote of a majority of the total members of the National Assembly, the president must comply. (Constitution, art.77, para. 5.) In this case, the main opposition called in its lawmakers urgently to the National Assembly building after the martial law declaration. “Of the 300 members of parliament, 190 were present and all 190 voted in favor of a motion demanding the lifting of martial law.”

4. Is this the first time in South Korea that Martial law was used?

This is the first time in 44 years since the Gwangju Uprising in May 1980. An NPR article cites Professor Charles Kim’s statement that South Korea “saw authoritarian rule starting from its founding after gaining independence from Japanese colonialism all the way to the 1980s.” According to another article on the Asia Media Center website, “[m]artial law has been declared some 16 times in the country’s history, with the first instance being in August 1948 when the Korean Republic was established.”

5. What other countries have recently been under martial law or emergency law?

Ukraine has been under martial law since February 2022. Though it is not nationwide, Myanmar’s three townships of Shan State are currently under martial law. In 2022, Canada invoked the Emergencies Act “for the first time in Canada’s history to give the federal government temporary powers to handle … blockades and protests against pandemic restrictions.” It gave “police more tools to restore order in places where public assemblies constitute illegal and dangerous activities.” The emergency measures were applied in a limited area. Egypt was placed under a state of emergency in April 2017. It was suspended on October 25, 2021.

6. What is the procedure for impeachment of the President?

The first motion to impeach President Yoon over imposing martial law against the constitution failed on December 7, 2024, due to a lack of quorum. A motion for the impeachment of the president can “be proposed by a majority of the total members of the National Assembly and approved by two-thirds or more of the total members of the National Assembly.” (Constitution, art. 65, para. 2.)

The second motion was successful. The National Assembly voted on December 14, 2024, to impeach the president, suspending him from his duties. (Id. art. 65, para. 3.) Prime Minister Han Duck-soo immediately began his duties as the acting president. Next, the Constitutional Court will examine whether Yoon violated the Constitution and the Martial Law Act. (For further information on impeachment, see South Korea: President May Be Impeached.)

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