We hear this term often in the news, but few people have read the provision itself. The Constitution sets out five clauses on martial law, and they are not very long. They state exactly how martial law is declared and how it is lifted.
3-line summary
1. Martial law is declared by the President after deliberation by the State Council.
2. Extraordinary martial law and precautionary martial law have different requirements and powers.
3. It must be lifted if a majority of all members of the National Assembly demands it.
The Five Lines Set Out in the Constitution
Article 77 of the Constitution proceeds in this order.
First, in time of war, armed conflict, or a national emergency equivalent thereto, the President may proclaim martial law in accordance with law when it is necessary to respond to military needs or to maintain public peace and order.
Second, there are two types of martial law: extraordinary martial law and precautionary martial law.
Third, when extraordinary martial law is proclaimed, special measures may be taken, as prescribed by law, with respect to the warrant system; the freedoms of speech, the press, assembly, and association; and the authority of the government or the courts.
Fourth, when martial law is proclaimed, the President must notify the National Assembly without delay.
Fifth, if the National Assembly demands that it be lifted by a majority vote of all incumbent members, the President must lift it.
The fact that the predicate in the final clause is not “may” but “must” is the most important part of this provision.
How the Two Types of Martial Law Differ
The details are set out in the Martial Law Act. Although the names may seem similar, their requirements differ.
Extraordinary martial law is proclaimed in time of war, armed conflict, or a national emergency equivalent thereto when the country is engaged in combat with an enemy, or when social order has been disrupted to such an extreme degree that administrative and judicial functions are effectively unable to operate.
Precautionary martial law applies when social order has been disrupted such that public safety cannot be maintained by ordinary administrative agencies alone.
The thresholds differ. The former presupposes that the country's basic functions have stopped, while the latter presupposes a situation that the police alone cannot handle. In either case, however, the preceding condition is the same: a time of war, armed conflict, or a national emergency equivalent thereto.
Procedures Required Before Proclamation
It is not a structure in which one person decides alone.
The Martial Law Act provides that when the President seeks to proclaim or change martial law, the President must undergo deliberation by the State Council. It also requires minutes of that meeting to be prepared immediately.
Recommendations also follow a procedure. The Minister of National Defense or the Minister of the Interior and Safety may recommend that the President proclaim martial law through the Prime Minister.
The items that must be announced upon proclamation are also specified: the reason, the type, when it takes effect, the area where it applies, and the identity of the martial law commander. All five must be included.
The method for notifying the National Assembly is also set out in the provision. It must be notified without delay, and the minutes of the State Council meeting must be submitted to the National Assembly at the same time. If the National Assembly is in recess, the President must request that it convene.
What Changes Once It Is Proclaimed
The scope of the martial law commander's responsibilities differs by type.
When extraordinary martial law is proclaimed, the martial law commander assumes responsibility for all administrative affairs and judicial-related affairs in the area. Under precautionary martial law, the commander assumes responsibility only for administrative and judicial affairs concerning military matters. The difference is substantial.
In areas under extraordinary martial law, the martial law commander receives special powers. Special measures may be taken regarding arrest and detention, seizure and search, speech, the press, assembly, association, and collective action. However, the provision requires these measures to be announced in advance.
This also includes mobilizing or requisitioning people and materials, as well as inspecting and registering goods to be supplied to the military and preventing them from being taken outside the area. There is even a provision allowing the destruction or burning of citizens' property when operationally unavoidable.
A reading of the provisions shows, without further explanation, why martial law is treated as an exceptional system.
Two Paths to Lifting It
The provision on lifting martial law is Article 11 of the Martial Law Act. It sets out two circumstances.
One is when the situation has returned to normal. The other is when the National Assembly demands that it be lifted. In either case, the President must lift martial law without delay and announce that fact.
Deliberation by the State Council is also required when lifting it. In a sense, the same door is used to enter and to exit.
The requirement on the National Assembly side is set out in the Constitution. It requires a majority of all incumbent members—that is, more than half of the current statutory number of National Assembly members—to vote in favor. This is based not on those present, but on the full membership.
To Avoid Confusing It With Emergency Orders
There is another system that may appear similar: the emergency orders under Article 76 of the Constitution.
An emergency order is not a system for deploying military forces; it is a system in which the President directly issues an order with the same effect as law. Its requirements are internal disturbance, external aggression, natural disasters, or a serious financial or economic crisis.
The way it is undone is also the opposite. An emergency order must receive National Assembly approval after the measure is taken, and if approval is not obtained, it loses effect from that point onward. Martial law is not structured around obtaining approval; it is structured around being lifted if the National Assembly demands it by a majority vote.
One remains in force only if the National Assembly gives it its seal of approval, while the other ends only when the National Assembly says it must stop. Keeping this distinction in mind prevents the two terms from being used interchangeably.
Summary
The rules on martial law devote more lines to procedures after proclamation than to the requirements for proclamation itself. They specify, item by item, what must be announced, where meeting minutes must be submitted, and which measures must be announced in advance. Reading the provisions once makes it possible to distinguish for yourself, when viewing related reporting, what is a matter of procedure and what is a matter of judgment.
References
- Constitution of the Republic of Korea, Articles 76, 77, and 89 — https://law.go.kr/법령/대한민국헌법
- Martial Law Act, Articles 2, 4, 7, 9, and 11 — https://law.go.kr/법령/계엄법
- Korean Law Information Center — https://law.go.kr