The real insurrectionists in South Korea

When South Korean President Yoon Suk Yeol issued his now-infamous martial law decree in the early hours of December 3, 2024, it seemed to many observers that his fate was sealed. With no apparent reason for the decree beyond reining in some recalcitrant lawmakers in the legislature, Yoon’s martial law move looked like a massive overreaction.

While reserving judgment on whether the president’s actions were unconstitutional, without having exhausted other political options, we argued at the time that Yoon’s martial law was a political misstep.

Even if Yoon survived the subsequent impeachment proceedings, we wrote, he had consigned his presidency to permanent lame-duck status—a long fade-out into oblivion. And so, it seemed to us then, the post-martial-law Yoon administration would limp along in ignominy.

But one thing stays constant then and now. A martial law declaration is a political question, one made at the discretion of the chief executive. Recall that when Yoon declared martial law on December 3, he was doing so as the sitting president. Martial law is something he had every right to declare. So, there was never any broad constitutional question at stake in that regard.

Whether declaring martial law without an apparent justifiable cause amounts to an egregious unconstitutional act–that is, an impeachable offense–is a matter for the Constitutional Court to resolve. Similarly, whether Yoon’s martial law decree constitutes an act of insurrection, as opposition parties so claim, is a question for the same court and criminal courts to address.

To that end, the question surrounding Yoon’s December 3 declaration is entirely soluble under the local constitution and law. It should have begun and ended as a straightforward question of what is allowed under the Constitution.

But Yoon’s opponents–namely the opposition Democratic Party and the investigative agency probing Yoon–have changed the stakes. If anything, their decision to recklessly escalate tensions in response to Yoon’s martial law gambit has inadvertently bolstered the argument for its necessity.

Let’s begin with the Corruption Investigation Office for High-ranking Officials’ (CIO) fixation on arresting a sitting president on allegations of inciting an insurrection. After one failed attempt, the CIO on January 15 apprehended Yoon from his residence under a controversial warrant issued by the Seoul Western District Court.

Four days later, judge Cha Eun-kyung from the same court granted a formal arrest of the president, extending the detention for another 10 days, including the initial 48 hours allowed under local law. 

Besides the unprecedented nature of such warrants in South Korean history, they are almost certainly illegal. The CIO, first and foremost, does not have jurisdiction to investigate the president on insurrection charges.

This investigative agency was created in 2020 under the leftist Moon Jae-in administration, which sought to rein in the prosecution, an institution the left had generally viewed as overpowered. By its own guidelines, the CIO’s authority is confined to investigating high-ranking officials, namely judges, public prosecutors and police officers, for corruption and the like.

But to gain an upper hand in a turf war among other investigative agencies over this “case of the century,” the CIO pressed forward with absurd reasoning that it had the right to probe the president for abuse of power, with insurrection charges being a natural extension of that crime.

In other words, the CIO decided that Yoon was guilty of insurrection–even before the CIO arrested him for it–and then used that presumption of guilt to justify an expansion of its scope of power to include a sitting president.

Even more astounding, the courts actually bought their argument. Two judges issued arrest warrants and one recently granted a formal arrest warrant against Yoon by ignoring the Criminal Procedure Act and never addressing exactly how the CIO has jurisdiction over the case.

More egregiously, during the execution of the second arrest warrant on January 15, the CIO and its authorities reportedly coerced the military commander at the presidential residence into authorizing their entrance.

According to news reports, this was done using falsified documents. The paperwork lacked the required seal of the Presidential Security Service’s chief, and instead, an unrelated scrap of paper bearing the stamp of a military commander was affixed to the official document, rendering the entire arrest procedurally invalid.

As if detaining Yoon weren’t enough, the CIO has lately escalated matters by preventing the president from meeting anyone other than his attorneys—not even his wife, the First Lady. And all this is taking place as Yoon’s trial at the Constitutional Court, determining whether he will be reinstated or formally removed from office, is pending decision.

For his part, Yoon is rightly pushing back. This is a classic example of the fruit of the poisonous tree: if the source (CIO’s jurisdictional overreach and illegal warrants) is tainted, everything derived from it is inherently compromised.

The chaos unleashed by the CIO is only half the story, however. Let us now turn our attention to the madcap maneuvers of the main opposition Democratic Party and their run-amok impeachment obsession.

Since the December 3 martial law declaration, the party has impeached President Yoon and the first acting president Prime Minister Han Duk-soo, the latter under an arbitrary rule set by the speaker of the parliament from the Democratic Party.

They have even gone so far as to threaten impeachment against the current acting president Choi Sang-mok and everyone in the line of succession if their demands are not met. This is on top of some two dozen impeachment motions against state officials and prosecutors filed by the Democratic Party since Yoon’s inauguration in May 2022. Several prosecutors involved in the ongoing probes into opposition leader Lee were also impeached.

For the past six weeks, moreover, the Democratic Party has relentlessly promoted the notion that Yoon incited insurrection on December 3, aggressively shaping the narrative for public consumption. But perhaps realizing the uphill battle of proving insurrection—a charge with a high burden of proof and in Yoon’s case very little proof—they are now pivoting away from it.

Rather, they have amended articles of impeachment to claim that Yoon failed to follow proper procedures when declaring martial law. This is quite the about-face for a party that, just a while ago, was steadfast in accusing Yoon of spearheading an insurrection, deploying the term as if it were a mantra and repeating it 29 times in their impeachment article.

What, then, is driving the Democratic Party’s perilous behavior? Beyond their clear intent to end a conservative presidency, they are seizing this moment to pave an unobstructed path for their leader, Lee, to ascend to the helm.

With two of Lee’s liberal rivals, Cho Kuk and Song Young-gil, recently imprisoned, and no viable contender emerging from the ruling party, Yoon’s fall would all but ensure Lee’s rise. For this reason, the party is intent on crushing any attempts to sabotage their plan, even if it means further elevating the tension already paralyzing South Korean society and politics.

Earlier this month, the Democratic Party unveiled the Minju Police Box, an online platform inviting citizens to report individuals for allegedly spreading false information about the December 3 martial law declaration. Unsurprisingly, what qualifies as false information remains entirely subjective.

Despite mounting criticism over censorship, the opposition has doubled down, pledging to track and pursue legal action against those accused of conspiring in an insurrection by spreading “false claims.”

One opposition lawmaker has even floated the idea of monitoring Kakaotalk, South Korea’s most widely used messaging app. Already, the party has filed police complaints against ten conservative Youtubers and several ruling party lawmakers.

But perhaps what the opposition party and the CIO have overlooked in their calculations is the very real possibility that their hotheaded pursuits could spectacularly backfire–which they clearly have.

Yoon’s supporters, who initially seemed to have been taken aback by Yoon’s declaration of martial law and resigned to the political consequences of that seemingly rash decision, are rallying decisively to his defense.

The South Korean electorate appears to have seen through the opposition’s facade. The president’s ratings have now surpassed 50% and the ruling People Power Party’s ratings have overtaken that of the opposition Democratic Party.

By escalating the martial law issue by means of injudicious use of judicial authority, the South Korean oppositionists have, ironically, sidelined the martial law issue and energized Yoon’s base like never before.

The tables have turned. The left is caught in a political whirlpool over the martial law debacle, while the right is taking the moral high ground, fighting for the survival of the country.

Because the calculus is different now, most South Korean conservatives are no longer concerned with the fate of Yoon alone but also with that of the constitutional order. South Korea, it would seem, is undergoing a coup d’etat by the left seeking to overwhelm executive power with judicial power applied in entirely dubious ways.

Many are in South Korea are thus asking the question: who are the real insurrectionists?