Skipping procedure risks democracy in times of crisis

On the night of Dec. 3, under martial law, the National Assembly’s plenary chamber erupted as lawmakers shouted at the speaker to immediately put the motion to lift martial law to a vote. “What are we doing? Let’s just get this done!” “We can do it by a show of hands or having members stand!” “The martial law troops are already outside the chamber!” Although aides and staff were blocking the armed soldiers, it seemed only a matter of time before they forced their way in. As tensions mounted, lawmakers urged that the motion be pushed through at once. At that point, however, the motion had not even been formally introduced. Speaker Woo Won-shik told lawmakers, “We must follow the plenary session process as it is.”

To make that possible, every system, including seat terminals and voting machines, had to be functioning normally. But the situation made that impossible. Many staff members could not enter the National Assembly or were engaged in confrontations with the martial law troops. Only a handful of people were left to handle multiple unfamiliar tasks simultaneously. The internal network was also down. To display the motion for lawmakers, someone had to go several floors below to the Secretariat, transfer the file onto a USB drive, and carry it back manually. Both a Hangul and a PDF version were required, but the staff member, attempting the task for the first time, retrieved only the Hangul file. They then had to push past the soldiers again to convert it into a PDF and bring it back.

Preparations for the vote were finally completed, but only four minutes remained until the plenary session opening time agreed upon by the ruling and opposition parties. The sound of soldiers pushing against the chamber doors grew louder. Shouts erupted, demanding that voting begin immediately. In his memoir, Speaker Woo recalled, “During those few minutes I heard every insult one could hear in a lifetime.” He added that each passing second felt unbearable. The vote began at 1 a.m., as scheduled. That night, the struggle to uphold proper procedure was as intense as the confrontation with the martial law forces.

The same agonizing wait for proper procedure occurred during the impeachment of former President Yoon Suk Yeol. As the Constitutional Court delayed its ruling, the public endured anxious anticipation but waited patiently. On that foundation, all eight justices issued a unanimous decision. Moon Hyung-bae, then acting president of the Constitutional Court, said, “All eight of us revised the ruling, one by one, to reflect each justice’s opinion as much as possible.” Had the court abandoned unanimity under pressure for a faster ruling, it would not have succeeded in easing anti-impeachment sentiment.

Procedural fidelity has the power to compel acceptance from the opposing side. The legal maxim “justice must not only be done but must also be seen to be done” underscores the idea that procedural justice leads to substantive justice. When the appearance of justice is maintained, the party being judged can accept the outcome, and society can reach a consensus on what constitutes wrongdoing. Even as martial law forces could have broken into the chamber at any moment, National Assembly staff retrieved the PDF, and Constitutional Court justices refused to relent until they reached consensus. Their efforts aimed to preserve the appearance of justice. It was this power of procedure that restrained former President Yoon, who once declared, “Even if the National Assembly lifts martial law, we can do it again and again.”

The judicial reform bills being pushed by the Democratic Party of Korea, including a proposal for a special tribunal to handle insurrection cases, rest on a troubling premise: that achieving the goal of eradicating insurrection justifies a process that may not appear fair. Experts across the judiciary and other sectors have flagged potential constitutional issues, and even some party lawmakers have voiced concern. Despite this, ruling party members on the Legislation and Judiciary Committee pushed the bills through the standing committee. Their disregard for procedural legitimacy was clear. Hastily drafted legislation could not only invite a counterattack from forces aligned with martial law but also erode the rule of law that citizens have worked to uphold.

A year ago, when martial law troops surrounded the National Assembly chamber and when former President Yoon defiantly held out at the Yongsan presidential residence, officials resisted the temptation to bypass proper procedures. It now raises the question of what is driving the ruling Democratic Party of Korea to cling so insistently to rushed legislation.