A made-up president, and a test of the situation

The notes work through a hypothetical in a text on the basic structure of government. President A is suspected of abuse of authority, and issues an emergency order because of the assemblies and protests that follow. They are asked to subsume the facts and show, with reasons, every way the order violates the Constitution. They first answer no: this is not a situation in which an emergency order may be issued.

Article 76(2), as they cite it, lets a president issue an emergency order with the force of law in a grave state of hostilities bearing on the nation’s safety, when emergency measures are needed to defend the country and the National Assembly cannot convene. A president may also issue an emergency fiscal and economic disposition, and an order with the force of law, when a serious fiscal or economic crisis requires it. For that, an internal or external calamity, a natural disaster, or a grave fiscal or economic situation must already be present. A so-called prior, preventive emergency power, aimed at a crisis only expected in the future, is not allowed. The made-up facts, they conclude, do not look like a situation for an emergency order.

Purpose, need, and the Assembly’s later yes

The purpose, they write, is not legitimate. The situation cannot be called a national emergency. The order is said to be for social stability, because discontent among the people, stirred by the president’s personal charges, is bringing confusion; that, they say, is not a justified aim. Need, too, is absent. A national emergency power, in their wording, is the power to use exceptional means when war, or an emergency that gravely threatens the state’s existence, has arisen. The hypothetical is neither.

An emergency order must be reported to the National Assembly without delay and must obtain its approval. If approval is refused, the order loses effect from then, and the president must promulgate that at once. Even when an exceptional order is used to meet urgency, they write, later consent from the Assembly is required; only then is procedural legitimacy recovered. The president also has, they note, the power under Article 72 to put important policies on diplomacy, defence, unification, or other matters of national safety to a referendum when it is found necessary, and under Article 128(1) the power to propose a constitutional amendment — neither of which, in their working, cures this order.

What the order is not allowed to touch

An emergency order cannot amend the Constitution. The Constitution, they write, is the basic law that makes the life and order of the state and of the community; it sits at the top of the legal system, as the ground and the force of lower law. To amend it is not a merely verbal change, but the start of a great change for the people. Nor can an emergency order take special measures against a court’s power to request constitutional review of a statute, or against the Constitutional Court’s power of review. The present Constitution, they write, gives review of statutes to the Constitutional Court, and review of orders and rules to the Supreme Court. A norm with the same force as a statute, even if it is not a statute in form — they name treaties and generally recognised international law (Article 6), emergency fiscal and economic orders (Article 76(1)), and emergency orders (Article 76(2)) — is, in their view, for the Constitutional Court alone to review.

On form, they find the order unlawful as well. An emergency order cannot be a disposition for a single person’s case: stopping an investigation of a named individual, or destroying evidence. A president, they add, should not be casually detained, or asked to step down, without an unlawful act in office; yet in a serious case of abuse of authority, departure from office at the people’s request can occur. Because President A already stands under suspicion of serious abuse, an order that stops an investigation and destroys evidence cannot, they write, be allowed as a personal disposition. The same Korean report, at fuller length, is on CampusDown.

Sources

1. The notes, a student working-through of a hypothetical emergency order by President A.

Last updated: 15 November 2026