Han Duck-soo verdict offers little clue to legality of Yoon Suk Yeol's martial law declaration

The Constitutional Court’s ruling on Prime Minister Han Duck-soo’s impeachment case was expected to offer a glimpse into the justices’ stance on the legality of suspended President Yoon Suk Yeol's Dec. 3 martial law declaration — a key issue in Yoon's impeachment trial. However, Han’s verdict provided few clues.

Though legal experts had anticipated that the ruling might address the legality of the declaration itself, the court did not examine the broader events of that day. Instead, it focused solely on the procedural aspects of the declaration.

"It seems the justices have agreed not to bring up the issue of the legality of martial law itself, because people might have a presumption (of the Yoon case)," Hwang Do-ssu, professor of law at Konkuk University specializing in constitutional law, told The Korea Herald.

The court concluded that there is no evidence to back the National Assembly's accusation that Han convened a Cabinet meeting before the declaration to give legitimacy to Yoon's martial law bid.

It also found no proof that Han failed to hold another Cabinet meeting to lift martial law upon the National Assembly's resolution.

"The issues are different in Yoon's case and Han's case regarding Yoon's martial law declaration, and little evidence about (the illegality of) martial law itself has been revealed in Han's impeachment trial," said Kwon Hyung-dun, professor of constitutional law at Kongju National University.

Kwon added that, in Han's case, his alleged involvement in Yoon's martial law plot was overshadowed by other issues such as his failure to fill three justice vacancies in the Constitutional Court and to appoint a special counsel to probe Yoon's martial law plot.

The court was "able to decide on Han's case without touching on the point of contention in Yoon's case," said Cha Jin-a, professor of constitutional law at Korea University.

Nonetheless, the court acknowledged that Han’s refusal to appoint the justices violated the Constitution. However, it found no objective evidence that his refusal was intended to cripple the Constitutional Court during the president’s impeachment trial and therefore concluded that it did not justify his removal from office.

The majority decision came with justices being divided, unlike a wide anticipation that the court would seek a unanimous ruling. Han's impeachment was voted down in a 5-1 vote by the court's eight justices. Two justices voted to throw out the impeachment motion entirely.

However, since the justices clearly expressed differing opinions in Han’s impeachment trial, there seems to be a possibility that a similar division could emerge in Yoon’s case as well, according to some observers in the legal circle.

"One thing for sure is, there is an internal disagreement between justices in Yoon's impeachment case," Hwang said, adding that in his view, it might signal that the court might be struggling to make the majority decision of at least six justices required to uphold Yoon's impeachment.

After concluding hearings on Feb. 25, the eight justices have been deliberating intensively on the impeachment of the suspended president, who is also on criminal trial for insurrection charges for allegedly attempting a self-coup.

Yoon's case involves far more contentious issues than Han’s, with both the National Assembly and the defendant fiercely contesting the matter, further complicating the justices' decision-making process.

Yoon’s verdict could face further delays, even after a month of deliberation — significantly longer than the Constitutional Court’s usual timeframe for drafting its opinion, but before the first week of April.

The bench also remains unfilled, with the final, ninth justice nominee, Ma Eun-hyuk, yet to be appointed by acting President Han and former acting President Choi Sang-mok, despite the Constitutional Court having ruled it is the acting president's duty to do so.

Two justices of the eight-member bench — Moon Hyung-bae and Lee Mi-son — are set to retire from their post in the second week of April.