Can Yoon be prosecuted for treason?

A hallway is filled with smoke after a lawmaker's aide sprayed a fire extinguisher at martial law troops at the National Assembly in Seoul, Wednesday. Legal experts have mixed views on whether a sitting president can be prosecuted for treason. Newsis

Police and the prosecution have launched their investigation teams to look into accusations targeting Yoon Suk Yeol, the beleaguered president facing an impeachment vote and criminal charges of treason, an offence punishable by death.

Legal experts largely agree that Yoon’s decision late Tuesday night to declare martial law lacked a legal basis as the Constitution allows it only during war or war-like situations that require emergency responses for social stability.

However, their views differ on whether he can be prosecuted for treason.

Article 87 of the Criminal Act states that treason can be defined as a “riot conducted for the purpose of usurping the national territory or subverting the Constitution.” A person who is found to be chiefly responsible for it could face the death penalty or life in prison.

The Constitution also states that the president “shall not be charged with a criminal offense during his tenure of office” ― except for insurrection or treason.

Han In-sup, a law professor at Seoul National University, said on social media that Yoon can be convicted of treason if he tried to block lawmakers from entering the National Assembly — which he did.

Suh Bo-hak, a law professor at Kyung Hee University, agreed. Speaking to Yonhap News Agency, he said the moment martial law troops broke into the Assembly’s building can be interpreted as showing Yoon's intention to subvert the Constitution.

But not everyone shares such views. Reportedly, other experts said the declaration of martial law is a prerogative the president can exercise and that treason charges cannot be convicted because no violence occurred in all that process. As the law requires, Yoon retracted the decree after lawmakers unanimously voted to nullify it, they added.

Jang Young-soo, a law professor at Korea University, compared the situation to the Supreme Court's 1997 verdict, which upheld treason convictions for two former presidents, Chun Doo-hwan and Roh Tae-woo. He said that Yoon’s martial law, unlike the previous one involving Chun and Roh, did not cause any casualties or serious human rights violations and that the court would thus view the case differently.

Police said a team of 120 investigators will look into the accusations of treason against Yoon and others. A separate group, led by Park Se-hyun, head of the Seoul High Prosecutors’ Office, will also investigate them.