Kenji Yoshida 
South Korean President Yoon Suk-yeol (©Kyodo, January 21, 2025)
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On January 19, the Seoul Western District Court authorized a formal arrest warrant for South Korean President Yoon Suk-yeol.
It comes four days after the president was apprehended by the Corruption Investigation Office for High-ranking Officials (CIO), an independent investigative agency. The warrant was sought as part of the CIO's probe into Yoon on insurrection charges related to his short-lived martial law declaration in December.
Under the new warrant, Yoon is expected to remain in custody until February 7. Given that the CIO lacks prosecutorial power in this case, prosecutors are expected to file an indictment before the detention period ends.
As part of detention conditions, the CIO has prohibited Yoon from communicating with anyone other than his attorneys, including his wife, the first lady. He is also forbidden from sending or receiving letters from the outside.
In addition to the criminal investigation, Yoon faces a pending Constitutional Court proceeding that will ultimately determine his presidential fate. If six of the eight justices uphold the impeachment motion, he will be removed from office and immediately stripped of his powers.
In an exclusive interview, Huh Young, an endowed chair professor at Kyung Hee University Law School, shared his perspective on the recent developments. A former chief of the Constitutional Research Institute, Huh is widely regarded as South Korea's foremost authority on constitutional law.
The Arrest and Detention of South Korea's Sitting President
President Yoon has been formally arrested. What are your thoughts?
The arrest and detention of a sitting president in a presidential system is unprecedented, not just in South Korea but perhaps worldwide. It is a grave mistake. Even more troubling is the CIO, which lacks the authority to investigate a president for insurrection, pursuing arrest warrants cavalierly.
Moreover, reports have recently surfaced detailing illegal activities committed by the authorities during the execution of the second arrest warrant on January 15. According to the Criminal Procedure Act, a presidential residence is classified as an area tied to military secrecy, meaning that the consent of the responsible party is required for entry and search.
During its execution, the authorities reportedly pressured the guard commander stationed at the presidential residence into authorizing their entry. The official entry permit was missing the required seal of the Presidential Security Service's chief, however. Instead, an unrelated scrap of paper bearing the commander's stamp had been affixed to the permit.
The entire procedure is invalid from its origin.
Who has the jurisdiction to probe President Yoon?
In principle, the police should lead this investigation and apply for warrants. As previously stated, the CIO lacks the authority to investigate or prosecute the president for insurrection under the current legal framework. For example, if the CIO were to indict the president in the future, the case would have to be transferred to the prosecutor's office, which would then take over. This is a complete absurdity.
The CIO was established under the Moon Jae In administration, but until now, it has yet to build a major track record. In my view, the agency is attempting to capitalize on this high-profile case to assert its presence.
Is it fair for Yoon to undergo a constitutional court trial while detained?
Absolutely not. What the CIO and the court have done is entirely inappropriate. When an impeachment bill passes in the South Korean parliament, the president's duties are suspended, limiting his ability to mount a full defense in court. Being in custody only exacerbates this challenge.
An Appearance of Double Standards
Some have drawn parallels between Yoon's situation and opposition leader Lee Jae-myung. What is your take?
In September 2023, the prosecution sought an arrest warrant for Lee Jae-myung over his perjury case, and the National Assembly approved the motion. However, the Seoul Central District Court rejected the warrant, citing multiple reasons in a detailed ruling spanning dozens of documents. This is quite unprecedented.
While the court acknowledged that Lee's perjury appeared to be substantiated, it ruled against his detention. It did so considering the defendant’s position as opposition leader and to safeguard his rights in future trials.
This was the first time in South Korea's history that a court had rejected an arrest motion approved by the National Assembly. And that moment remains vivid in the minds of the South Korean people. In stark contrast to Lee's case, many are now questioning whether the arrest warrant for President Yoon aligns with the principles of equity under the law. In my view, this is not merely a question ー it is a blatant violation of the Constitution.
What do you make of the opposition Democratic Party removing insurrection charges from the impeachment articles?
When the National Assembly passed the second impeachment bill, the primary reason cited was President Yoon's alleged insurrection through his martial law declaration on December 3. Naturally, the Constitutional Court recognized this as the central grounds for impeachment. Yet during the subsequent hearings, some judges reportedly suggested removing the insurrection charge from the article, a proposal apparently accepted by the Democratic Party.
If true, it would constitute a grave offense by the Constitutional Court. Even if it isn't, removing the insurrection charge from the impeachment article is a deeply troubling maneuver.
This is particularly concerning because 12 ruling party lawmakers voted in favor of the second impeachment bill, and without their support, the bill would not have passed. Had the insurrection charge been excluded from the outset, these lawmakers would have had no reason to vote in favor. In fact, many of them later issued a statement denouncing the impeachment as fraudulent.
The Constitutional Court, therefore, should promptly strike down the impeachment motion. Some judges have proposed that an amended impeachment bill be reintroduced to Parliament for a vote. This approach, however, would violate the principle of double jeopardy.
Testimonies from those involved in the martial law decree say the president ordered the obstruction of parliamentary work. Are testimonies enough to convict Yoon?
Under South Korean law, statements made by suspects during police or prosecution investigations become inadmissible if they later deny them before a judge upon a formal indictment. For such testimonies to be valid in court, they must remain consistent throughout the subsequent trial process.
So far, the investigators are relying solely on statements from those linked to the December 3 martial law decree, with no physical evidence to corroborate them. Moreover, news reports suggest that some of these statements may have been made under duress from opposition lawmakers. If these individuals later retract their statements in court or claim they were coerced, those statements will be rendered inadmissible.
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Author: Kenji Yoshida
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