National Assembly Approval Required for Martial Law Declaration and Extension
Special Pardons for Treason and Rebellion Prohibited
"Stronger Controls on Unconstitutional or Illegal Martial Law"
Democratic Party lawmaker Kwon Hyangyeop announced on the 20th that she has proposed the “Unconstitutional Martial Law Prevention Act” (Partial Amendment to the Martial Law Act), which requires National Assembly approval when declaring or extending martial law and deletes provisions in the Martial Law Act that may be unconstitutional. She also proposed the “Special Pardon Prohibition Act for Crimes of Insurrection” (Partial Amendment to the Amnesty Act), which prohibits special pardons for those convicted of insurrection and rebellion.
According to the Constitution of the Republic of Korea and the current Martial Law Act, the president may declare martial law in times of war, emergency, or equivalent national crises for military necessity or to maintain public order. Once martial law is declared, special measures may be taken regarding warrants, and freedoms of the press, publication, assembly, and association.
Kwon Hyangyeop, Member of the National Assembly.
However, despite the fact that declaring martial law is a significant measure restricting basic civil rights, the current law lacks sufficient provisions for National Assembly oversight on the declaration of martial law, and there are no regulations regarding the duration of martial law.
Additionally, the current law allows for measures regarding residence and movement not stipulated in the Constitution when martial law is declared, and permits the extension of military court jurisdiction for one month even after martial law is lifted. This has raised concerns of unconstitutionality and potential infringement of citizens’ basic rights.
Accordingly, the main points of the Partial Amendment to the Martial Law Act are: ▲ requiring National Assembly approval when declaring martial law ▲ limiting the duration of martial law to within seven days ▲ requiring National Assembly approval for any extension of martial law ▲ deleting provisions regarding residence and movement from special measures ▲ deleting the authority to extend military court jurisdiction after martial law is lifted.
Kwon emphasized, “In continental law countries such as Germany and France, the martial law system requires National Assembly approval and time limits as a form of prior control, but in Korea, only post-control by the National Assembly exists. We must block the possibility of unconstitutional or illegal emergency martial law declarations in advance and strengthen democratic oversight.”
Furthermore, under the current Amnesty Act, special pardons, commutations, and restorations of rights for specific individuals are granted by the president, with no particular restrictions on the types of crimes included.
Because there are no regulations limiting the president’s power to grant special pardons, critics argue that even those who plot and carry out insurrection or rebellion threatening constitutional order may receive special pardons.
Thus, the main point of the Partial Amendment to the Amnesty Act is to prohibit special pardons for ringleaders and key participants in insurrection under the Criminal Act, as well as ringleaders and key participants in rebellion under the Military Criminal Act.
Kwon stated, “We aim to make it clear that crimes of insurrection and rebellion, which undermine constitutional order and threaten the lives of the sovereign people, must be strictly punished,” adding, “We must set a stern precedent so that a second Yoon Sukyeol, who would trample on the democratic republic with military boots, will never arise again.”
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