Japanese: https://i-rich.org/?p=2359
Seishiro Sugihara
President
International Research Institute of Controversial Histories (iRICH)
The political feud this time was caused by shortcomings in the current constitution
In the South Korean presidential election held on June 3, 2025, as expected, Lee Jae-myung of the “Together Democratic Party” won and became the South Korean President on the next day.
Plainly speaking, the political chaos this time triggered by the former President Yoon Suk Yeol declaring martial law was solely due to shortcomings in the current Constitution of the Republic of Korea.
On December 4, the National Assembly of the Republic of Korea resolved to demand the lift of the martial law and President Yoon immediately cancelled the martial law. Later, on December 14, the National Assembly resolved to follow up with impeachment proceedings to purge the president. If the Korean impeachment proceedings were the same as the non-trust resolution cited in the Japanese Constitution, the President could have authorized the dissolution of the National Assembly and then called a general election. If the newly elected members of the National Assembly would vote in favor of the President, he would be able to resume the presidency, and if voted otherwise, he would lose the presidency. If this had been the case, the political feud this time would have been settled orderly by the people’s consensus.
From this perspective, the Korean Constitution has a peculiar stipulation, albeit it has some advanced stipulations when it comes to human rights. For example, Article 84 stipulates the crime of insurrection by the President and conflicts with other countries. Article 76 authorizes the President to issue emergency orders against domestic and foreign insurrections, and Article 77 authorizes the President to declare martial law in case of national emergencies. Why, then, is the crime of insurrection stipulated? Is it that the crime of insurrection means act committed to cause insurgence with the purpose to replace the government? How is it possible that the President authorized to issue emergency orders and martial law could be charged with the crime of insurrection? As the issue of insurgence was raised this time, the police investigated the President on the charge of inciting a riot, which seems quite odd in view of the rule-of-law principle.
Under the Yoon Suk Yeol administration, the “Together Democratic Party” made impeachment proposals 31 times, following the Constitution. Before that, impeachment proposals were made 18 times in 38 years since the Constitution was proclaimed in 1987. Comparing these numbers, we can see how often the impeachment was proposed under President Yoon Suk Yeol. Although it was legally and politically improper that President Yoon declared the martial law as a warning, I would rather emotionally sympathize with him to a certain extent.
The birth of the current South Korean Constitution emphasizing judiciary power
In South Korea, after the military administrations by Park Chung-hee and Chun Doo-hwan, in June 1987, democratization was declared on July 12, and on October 29, the tenth-revised Constitution came into effect as the current one, after nine revisions since the Constitution of the Republic of Korea was proclaimed on July 12, 1948. And in December,1987, presidential election was held and Roh Tae-woo became President. Since then, presidents elected by the people ensued.
In such political historical background, President Yoon declared martial law and naturally, the Korean people could not agree to the martial law.
However, the Constitution, seemingly over-conscious of the military administrations, is too dependent on judicial power and in that respect is somewhat inappropriate. Beyond the principle of separation of the three powers in the rule of law, it is too dependent on the work of judiciary power, deviating from the principle of separation of the three powers. Principally, political issues to be dealt with based on the political intention of the people are intended to be addressed by the judiciary power, whose task should be to carry out judicial justice and provide a correct interpretation of laws. Such attempts ultimately lead to the division of the people.
In the end, under the current constitution, President Yoon Suk Yeol declared martial law on December 3 last year and on the 14th, the National Assembly voted for impeachment, suspending the presidential office and on April 4, this year, the Constitution Court ruled that the President be dismissed. Following the decision, the presidential election was held on June 3.
On the other hand, as for Lee Jae-myung of the “Together Democratic Party,” who had been charged with violation of the “Public Offices Election Act,” the South Korean Supreme Court overturned the verdict of the original court citing not guilty and ruled otherwise, and Lee Jae-myung was on the verge of being non-qualifier for the presidential run. The High Court, on being remanded the verdict, decided that the court hearing be held on June 18, after the presidential election, postponing the original court date of May 15. By this decision, Lee Jae-myung was able to run for President and was consequently elected President. After all, the appointment of the new President Lee Jae-myung and the impeachment of the former President Yoon Suk Yeol were realized by the hands of judges who are not chosen by the people.
The Korean people want to reform the Constitution, focusing on the judicial issue
Fortunately, the people of the Republic of Korea are wise and most of them want constitutional reform. They have a strong interest in courts and want a reform of the judicial system. During the presidential election this time, both the ruling “People Power Party” and the opposition “Together Democratic Party” cited constitutional reform among their policies. Responding to the people’s intention, they should address the issue of constitutional reform, focusing on the reform of the judicial system.
What is judiciary, then? I would like to consider what the role of law is in terms of the separation of the three powers under the “rule of law” or “nomocracy.” It goes without saying that in terms of written law, judiciary’s ultimate role is to faithfully follow law, and in case of non-written law, through court procedures, judiciary exercises the final interpretation and judgement of the matter in question. And it is presumed that the interpretation thus made shall be applied in the same manner when dealing with any case of the same nature.
Such a judiciary act is not an act of the government but interpretation of law, conducted by judges who are selected from individuals with the required qualifications. Through lawsuits, in order to exercise the same judgement regarding the same issue, there is the system of the three stages of courts, namely, district court, high court and the supreme court.
The judiciary follows the Constitution, the highest written law. Therefore, when the legislative body makes a law against the Constitution, the judiciary is authorized to nullify the law in question. This is principally done through lawsuits. Article 13 of the current South Korean Constitution stipulates that the retroactive legislation shall not be applied to suffrage and property right. If such a retroactive law is made, those who are to lose their rights can file a lawsuit. During the court process, it is clarified that such legislation is against the Constitution and thus the law’s effectiveness is halted. Thus, it is made clear that the judiciary exercises the final interpretation regarding the Constitution and law.
In this sense, the judiciary is opposite to the government. However, the current Korean constitution so easily designates to court decision matters that should be dealt with by the government.
In discussing what judicial power is, we must look at the “theory of governing act.” The executive branch in charge of administrative power is authorized to declare martial law or something similar in the case of national emergency, without grounds written in the law. For example, when North Korea militarily invades South Korea or huge earthquake hits most parts of the country, the government should immediately cope with the dire situation, and emergency orders, including martial law, can be issued. This is the right concept under the “rule of law” or “nomocracy.”
Article 76 of the current South Korean Constitution stipulates that in the case of domestic insurgence, foreign raid or natural disaster, emergency orders shall be issued, and Article 77 stipulates that martial law shall be declared in case of a national emergency.
Regarding former President Yoon Suk Yeol’s declaration of martial law on December 3 last year, there are different views as to whether his act was constitutional based on the article of the constitution or not. Strictly speaking, it looks like both. There was no such emergency as to require martial law and his act was unconstitutional. On the other hand, he immediately cancelled the martial law, following the disapproval of the National Assembly and on December 14, he followed the Assembly’s resolution of impeachment and purge from the office. This shows that he acted according to the Constitution. Then, even if the martial law was issued politically in a wrong manner, the case should have been dealt with by the Assembly’s disapproval. Therefore, it can be interpreted that the act was formally constitutional. However, former President Yoon reportedly tried to hold Assembly members in custody, and in this sense, former his declaration of martial law could partially have been unconstitutional.
When we think about the role of judiciary, we must take the concept of “theory of act of government” into account. Regardless of the existence of written-law grounds, the administration has a special role when it comes to government. This theory is so important that we cannot eliminate this way of thinking.
This theory was strongly advocated in Japan in December 1959 by Tanaka Koutaro, the then Chief Justice of the Supreme Court of Japan and jurist, in connection with the verdict of the case called the “Sunagawa incident.” In the Japanese Constitution, interpreted literally, Article 9 stipulates that Japan shall possess no armed forces. In a further literal interpretation, it is also unconstitutional to have foreign armed forces stationed in Japan. Therefore, it can be concluded that it is unconstitutional to have the United States forces stationed in Japan because it is tantamount to having “armed forces” in Japan. How did Justice Tanaka judge in this situation?
Justice Tanaka did not say either constitutional or unconstitutional because judging whether it is constitutional or not is not within the jurisdiction of the judicial court. That is, a highly political state act related to the foundation of the state government is an issue beyond the jurisdiction of the court, even when it is possible to judge through court proceedings whether it is constitutional or not.
In gist, the role of judiciary is to carry out the final interpretation of law through lawsuits. Even so, there are matters related to government that are outside the jurisdiction of the court. We must say this was an extremely important judgement regarding the role of the judiciary.
In case of the current Korean Constitution, it is highly respectable that democratization was declared in June 1987 and efforts were made to protect democracy under “rule of law” or “nomocracy.” However, when it comes to the role of the judiciary under the Constitution under “rule of law” or “nomocracy,” it was made to play inappropriate role, including the case of “theory of governmental act.” Plainly speaking, what should be politically resolved based on the people’s intention has been entrusted to the judiciary, whose task is to pursue the rightful interpretation of law.
Through the presidential election campaign this time, both the then ruling “People Power Party” and the then opposition “Together Democratic Party” held up the policy of constitutional reform. However, there were few reform plans advocating judicial issues. There are many reforms to be made, such as the regulation of the one five-year-term only presidential office. The worst fault of the South Korean Constitution is that what should be solved politically is entrusted to judicial judgement. Unless this fault is overcome, there will be no stability of the South Korean government.
From this viewpoint, speaking of South Korean principles of order of law and constitution, further consideration of viewpoints is necessary, regarding the prohibition of legislation of exclusively specified matter and prohibition of retroactivity.
When there is only “rule of law” worthy of the name of rule, under “rule of law” and “nomocracy,” no legislation applicable solely to specific individuals is permissible. The premise of general law must be constantly observed. Moreover, legislation that can be disadvantageous to specific individuals must be strictly adherent to the rule of non-retroactivity. That is, legislation related to individual disadvantage must strictly follow the principle of non-retroactivity, which means that such legislation should be strictly applied to cases that occur after the legislation. Unless this principle is observed, such a state cannot be said to be a state worshiping “rule of law” and “nomocracy.” In South Korea, as a leading state in the world, those who are engaged in law-related legislation, administration and judiciary must seriously recognize this idea and work to make South Korea one of the most excellent modern states in the world.
Bi-partizan structure in South Korea
Article 8 of the current South Korean Constitution stipulates that when a political party’s purpose or activity is judged to violate fundamental domestic order, such party shall be possibly dissolved. This judgement is made by the constitutional court. In the case of South Korea, in the north sits the communist brother state and constant vigilance is unavoidable, so a pro-North Korea and communist-admiring political party is impermissible. It is understandable that its Constitution holds such stipulation. Consequently, however, what kind of political structure may come into existence? Under the political structure void of communism, after all, bi-partisan system, like that of the United States, with a slight difference between conservatives and non-conservatives or liberals and non-liberals will be practically established. In addition, in Japan before the war, when the communist party was illegal, Seiyu Party and Minsei Party became two major parties and entered into one battle after another only to fail to establish a sound political party government. One of the reasons was that since the communist party was illegal and communist activities were strictly suppressed by the special police, placing the party out of the public sight, the political world did not have to worry about the communist party.
In the postwar Japanese political world, the communist party is legal as long as it does not plot a violent revolution. Political abilities of many parties are to be judged by the distance they keep from the communist party. In this respect, vigilance regarding communist activities now is an everyday concern and as a result, the Liberal Democratic Party upholding the conservative political line has long held the administration.
In South Korea, there will be no alternative but to maintain stability through bipartisanship.
Then, the legislators should stop abusing the previous administration and degrading those involved in the former administration every time the government changes hands. In this respect, Lee Jae-myung, who became President with the help of the judiciary, said in his inauguration speech on June 4 that he would “stop the division.” To this end, he should pardon the declaration of martial law by former President Yoon Suk Yeol as a kind of constitutional act. Considering this unthinkable declaration of martial law was an error committed by the opponent and a deplorable selfish goal, it is important for him to leniently cope with it. While in the presidential office, it may be permissible for him to make a law favorable to him such as exempting him from the lawsuit and suspending the trial, but he should not promote legislation which is impermissible under the “rule of law” or “nomocracy.”
Then I want him to work on a constitutional reform so that the division may be removed. To realize this goal, it is necessary to constantly reflect the people’s intention and make adjustments accordingly like the United States with the four-year presidential term, where half of the Congress members are elected through the mid-term election so that the President’s government may be judged by the people.
Expectations from Japan
Allow me to repeat that during his inauguration speech on June 4, the newly elected President Lee Jae-myung said that he would eliminate the domestic division and internationally make practical diplomatic efforts, valuing the relationship of South Korea, Japan and the United States and Japan-South Korea relationship. This may be realized. In Japan during the time of the Meiji Restoration, before the great cause of national unification, severely conflicting Satsuma and Choshu domains came to unite and form an alliance. Just like what happened in Japan, President Lee Jae-myung may drastically change and stop the long history of ill vengeance on the previous administration, become a truly great president and dissolve the conflict within the country. President Lee himself is to deal with five criminal charges against him. However, he may be possibly pardoned and exempted from the charges forever as a great president by the next president.
However, at the base supporting President Lee Jae-mung lies the magma-like dormant power about to erupt with anti-Japan issues of mobilized workers and comfort women. There may be chances at any moment of the magma erupting and freeze Japan-South Korea relationships like ice. If so, Japan must be fully prepared for any symptom of the Lee Jae-myung administration using the anti-Japan card and if such action becomes imminent, Japan should immediately freeze economic and diplomatic friendship and keep President Lee Jae-myung from making any little steps toward such action. This may turn beneficial for the future decisions that President Lee Jae-myung could make.
At present, both Japan and South Korea suffer declines in the number of births. However, in the global perspective, both countries are ranked among the most advanced in the world. In the average lifespan, Japan ranks first and South Korea third. It is extremely regrettable that between the most advanced countries in the world, a groundless anti-Japan policy is implemented, and anti-Japan sentiment swallows up people’s minds. It may be permissible as historical recognition of the South Korean people that Japan’s annexation of Korea in 1910 was colonization of Korea by Japan, but it was not unilateral exploitation on the part of Japan.
When World War II was over and Korea was revived as one nation, many systems established under Japan’s rule of Korea were preserved. Among those that remained were the police system and the grand and competent bureaucratic system. Looking today at a country that became modernized and one of the most advanced countries in the world, one can understand how valuable the positive heritage of Japan’s rule is. Apart from the emotional aspect, the people must have come to the stage where they can objectively recognize it.
Besides, the anti-Japan feelings in postwar South Korea were purposefully promoted by consecutive governments through anti-Japan education. Present-day South Koreans seems to recognize already that the anti-Japan sentiment was partly brought about by the anti-Japan education. They are now at the stage where they must get rid of anti-Japan feelings for the sake of the honor of South Korea.
Geopolitically, at present, South Korea is in a position where it has to confront the despotic nuclear powers of North Korea, China and Russia. South Korea, Japan, the United States and Taiwan are in the relationship of mutual assistance as universal democracies. If so, there is no room or time for anti-Japan claims under the current circumstances. At any hint of an anti-Japan movement, Japan must immediately freeze the policy of promoting the Japan-South Korea friendship. It is naturally good for Japan to freeze the friendship at the hint of an anti-Japan action on the part of the Lee Jae-myung administration. It is also indispensable, necessary and good for South Korea and the newly elected Lee Jae-myung. In this way, we can help President Lee Jae-myung become the greatest and best president in Korean history.
What I have said so far is not meant to be a patronizing message from Japan. In Japan, too, the judiciary has become abnormal. The Supreme Court of Japan has deteriorated extremely when it comes to judging ability and competence. I am concerned about the judiciary world in Japan and want to have Japanese Constitution reformed as well.