Emergency Martial Law Declaration in a '5-Minute' Cabinet Meeting - Violation of South Korea's Constitutional Order

"A 5-Minute Cabinet Meeting: A Grave Question in the History of the Republic of Korea"

• A state of emergency is an extreme measure taken during a national emergency, and it's a serious decision that transfers even the basic rights of citizens and judicial power to the military.
• Even the Chun Doo-hwan regime in 1980, while declaring a state of emergency, held a cabinet meeting and documented all procedures. Their legitimacy is certainly questionable, but at least they left a record.
• But what about the Yoon Suk-yeol administration in 2024?
• They finished the cabinet meeting in just 5 minutes, leaving no record of statements, signatures, or even the agenda materials.
  This is a behavior that ignores even the minimum principles of democracy and the rule of law. This decision, which ignored the procedures followed even by Chun Doo-hwan, who committed the atrocity of trampling on democracy, is leaving a deep stain on the history of the Republic of Korea's constitution.

1. Proclamation of a "State of Emergency" to Maintain Constitutional Order

What is a state of emergency?

According to Article 77 of the Constitution, the President can declare martial law in the event of a national emergency such as an insurrection or rebellion. Martial law is divided into martial law and a state of emergency, and a state of emergencyis enacted in extreme situations such as an insurrection or war, and it means that general administrative and judicial powers are transferred to the military. This is a very powerful measure that significantly restricts the fundamental rights of citizens.

Therefore, a state of emergency must follow a very careful and thorough procedure.

• Article 89 of the Constitutionstipulates that prior deliberation in the cabinet meeting is required.
• Also, according to Article 17 of the Public Records Management Act, major meetings attended by the President must have minutes, stenographic records, or audio recordings.

However, this cabinet meeting ended in just 5 minutes,
and even the gist of the statements was not recorded, raising serious questions about procedural legitimacy.

2. Procedural Problems of the Cabinet Meeting: Decisions Without Records

① Why are records important?

Records are the core of democracy.

In the process of major national decisions, records guarantee transparency and accountability by showing what discussions took place and what judgments led to the conclusions.

• Article 82 of the Constitution states that all legal acts of the President must be in writing.
• According to Article 3 of the Cabinet Meeting Regulations, all agenda items must be submitted in the form of bills, discussed and deliberated upon in the cabinet meeting.

But in this cabinet meeting,

• minutes were not written,
• and the Ministry of the Interior and Safety stated that bill materials were not submitted by the Presidential Office.

This situation is highly likely to be interpreted as a clear violation of laws and regulations.

② Quorum Issue

The cabinet meeting consists of the President and 21 cabinet members (minister-level), and a quorum of at least 11 members must be presentto convene.

• 11 members attended the meeting to declare a state of emergency, barely meeting the quorum requirements.
• However, since even the statements of cabinet members were not recorded, let alone the minutes, it's impossible to trust whether there was sufficient discussion.

③ Suspicion of Violation of the Public Records Management Act

• Article 17 of the Public Records Management Actstipulates that stenographic or audio recordings must be made for all major meetings attended by the President.
• Even the Ministry of National Defense replied that it did not prepare materials for the state of emergency bill, which is a serious matter that violates both the Cabinet Meeting Regulations and the Public Records Management Act.

3. The National Assembly's Request for Revocation and Subsequent Issues

In the early morning of December 4th, the National Assembly passed a resolution requesting the revocation of the state of emergency.
Consequently, a cabinet meeting was held for two minutes from 4:27 AM, and the state of emergency was lifted.

• However, the gist of the statements was not recorded at all,
• and it was revealed through the reply materials that there were no opinions from the cabinet members other than the Ministry of National Defense's explanation of the proposal.

This is not a simple administrative oversight, but a serious problem that shakes the principles of national record management and the basic framework of democracy.

4. Why did this problem occur?

Experts interpret this matter as follows:

1. Lack of Procedural Legitimacy

A state of emergency is a measure taken in an extreme situation of the constitutional order, and it should be more transparent and cautious than any other decision. However, the 5-minute meeting without records undermined the grounds for justifying this.

2. Concerns about the Disposal and Concealment of Public Records

The Presidential Office's response that "there is no record" raises suspicions of intentional concealment, not a simple administrative mistake. This seriously undermines the public's right to know and the government's accountability.

5. Points We Must Remember

This incident reminds us of the importance of the rule of law and transparency, which are the foundation of democracy in the Republic of Korea.

• When the state makes a major decision that restricts the fundamental rights of citizens, it must openly disclose the entire process.
• Public trust is built through such procedural legitimacy and records.

6. The Procedure for Declaring a State of Emergency: The Chun Doo-hwan Regime Followed It, But the Yoon Suk-yeol Administration Didn't?

A state of emergency is a major measure that significantly restricts the fundamental rights of citizens and can shake the foundation of constitutional order and democracy; therefore, strict procedures are essential.

In 1980, the Chun Doo-hwan regime held a cabinet meeting to deliberate on the declaration of a state of emergency, created documents related to the declaration, and obtained signatures from participants. All procedures were documented and preserved as records.
This can be seen as an attempt to secure at least minimal procedural legitimacy, even while facing criticism for undermining democracy.

However, in the process of declaring a state of emergency in 2024 under the Yoon Suk-yeol administration,

• the meeting was concluded in just 5 minutes,
• the gist of the statements and agenda materials were not recorded,
• and there were no documentation procedures such as signatures, resulting in a situation lacking even procedural legitimacy.

The Yoon Suk-yeol administration's disregard for the procedures that even the Chun Doo-hwan regime followed is criticized as a serious regression of democracy, as it directly violates the constitution and the principles of public record management.

"Procedure proves the responsibility of power."

The exercise of power without procedure inevitably loses its legitimacy in a democratic society.

Conclusion: The Absence of Procedure is the Absence of Accountability

• Democracy gains trust through transparency and procedure. However, the Yoon Suk-yeol administration, by handling the major issue of a state of emergency without any record, failed to show its willingness to take responsibility before the people.
• This cannot be dismissed as a simple administrative error. Power without records becomes irresponsible power, and irresponsible power loses the public's trust.
• If the Yoon Suk-yeol administration disregarded the procedures that even the Chun Doo-hwan regime followed, where can its legitimacy be found?
  If the power is for the people, shouldn't it show the courage to take responsibility?
• The democracy of the Republic of Korea will never tolerate power without procedure.

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