Venice Commission - Observatory on emergency situations
www.venice.coe.int
Disclaimer: this information was gathered by the Secretariat of the Venice Commission on the basis of contributions by the members of the Venice Commission, and complemented with information available from various open sources (academic articles, legal blogs, official information web-sites etc.).
Every effort was made to provide accurate and up-to-date information. For further details please visit our page on COVID-19 and emergency measures taken by the member States: https://www.venice.coe.int/WebForms/pages/?p=02_EmergencyPowersObservatory&lang=EN
1. Are there specific provisions in the constitution of your country applicable to emergency situations (war and/or other public emergency threatening the life of the nation)?
South Korea has a presidential system of governemnt. In the state of emergency, the power to issue urgent measures is given to the President by the Constitution. Constitutional provisions regarding this are as follows:
2. Do organic/constitutional or ordinary laws regulating the state of emergency exist in your country?
The state of emergency is regulated by the Constitution which gives the President the power to issue acts having the force of the law (see Q1); in addition, certain measures can be taken by the executive on the basis of ordinary legislation (see Q3)
3. Do organic or ordinary laws on health risks or other public emergency exist in your country?
In South Korea, “Infectious Disease Control and Prevention Act [IDCPA]” is already implemented as a general law to deal with the spread of infectious diseases. The purpose of this Act is to contribute to improving and maintaining citizens' health by preventing the occurrence and epidemic of infectious diseases hazardous to citizens' health, and prescribing necessary matters for the prevention and control thereof. The IDCPA is the most relevant law in effect regarding the COVID-19 outbreak in South Korea. The IDCPA endows the government with specific means to distribute resources, mobilize and stimulate various actors across the whole society in the effort to fight against the spread of infectious diseases.
4. Was a state of emergency declared in your country due to the Covid-19 pandemic? By what authority and for how long?
IDCPA and other general laws are already in place to combat the spread of COVID-19 (see Q3). Currently, the spread of COVID-19 in South Korea can be sufficiently controlled by these general laws. Therefore, there was no need for the President to exercise of exceptional legislative power under Article 76 of the Constitution (see Q1).
5. Was the declaration subject and submitted to parliamentary approval (if it was taken by the executive)?
The Korean executive authorities used powers they have already by virtue of an ordinary legislation (see Q3), constitutional mechanisms of legislation by Presidential decrees (see Q1) was not used. In any event, to use this mechanism the Constitution does not require a separate declaration of the state of emergency.
6. Was the declaration subject and submitted to judicial review? Was it found justiciable?
The Korean executive authorities used powers they have already by virtue of an ordinary legislation (see Q3), constitutional mechanisms of legislation by Presidential decrees or declaration of a martial law (see Q1) were not used. In any event, for the President to adopt emergency decrees the Constitution does not require a separate declaration (which is, however, required if the martial law regime is established).
7. Are derogations to human rights possible in emergency situations under national law? What are the circumstances and criteria required in order to trigger an exception? Was a derogation under Article 15 ECHR or under any other international instrument made? Does national law prohibit derogation from certain rights even in emergency situations? Is there an explicit requirement that derogations should be proportionate, that is limited to the extent strictly required by the exigencies of the situation, in duration, circumstance and scope?
There is no formal derogation mechanism but the Constitutiona provides that rights can be limited, and certain limitations are provided by current legislation on health emergencies.
8. Which human rights have been limited/derogated from in your country, in the context of the Covid-19 pandemic?
IDCPA describes the powers of the State bodies in coping with an epidemy, but it also guarantees the right to be treated, the right to be compensated for damages caused by isolation and medical treatment (Article 6 (2), the right to know about infectious diseases, the obligation of the State ro bear expenses related to medical treatment of the infectious diseases under this act (Article 6 (3)) and the obligation of the citizen to cooperate with the State (Article 6 (4)), including the treatment and isolation measures.
9. If a declaration of state of emergency was not made, did the Executive enjoy additional powers under the ordinary legislation on health risks or another public emergency? Did it decide to impose exceptional restrictions on human rights based on these laws?
Powers of the executive are based on the existing legislation (namely the IDCPA); in theory, the President may use powers given by Articles 76 and 77 of the Constitution, but it was not needed in the current situation
10. Are the possibilities for the Executive to derogate from the normal division of powers in emergency circumstances limited in duration, circumstance and scope?
Powers of the executive are based on the existing legislation (namely the IDCPA); in theory, the President may use powers given by Articles 76 and 77 of the Constitution, but it was not needed in the current situation
11. Were the sessions of parliament suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of parliament during the emergency adopted? By parliament or by the executive?
Daily economic life continued without interruption in South Korea, and no disturbances have occurred. The National Assembly functioned normally during this period.
12. Were the judicial sessions of the Constitutional Court or court with equivalent jurisdiction and/or other courts be suspended during the Covid-19 pandemic? If so, for how long? Were specific rules on the functioning of these courts during the emergency adopted? By parliament or by the executive?
In South Korea, the Constitutional Court and the general courts operated as usual during the health crisis. However, in March, when the spread of COVID-19 was severe, the general courts proceeded with delay of ‘non-urgent’ case hearings. This had a limited effect of slow-down of the ongoing procedures.
13. Was legislation on the state of emergency or on the emergency amended or adopted to deal with the Covid-19 pandemic?
The authorities acted on the basis of the existing legilsation on health emergencies; the President did not use its constitutional powers to issue decrees having the force of law and Parliament did not legislate specifically for this purpose
14. Was this additional legislation subject to judicial review?
Not applicable (no additional legislation was adopted).
15. Was the state of emergency prolonged? For how long? Was the prolongation subject and submitted to parliamentary control? Was it subject and submitted to judicial review?
Not applicable (see Q1 - martial law was not decalred (see Article 77 of the Constitution) and the President did not use the power (under Article 76) to legislate through emergency decrees
16. What are the legal remedies available against general measures and/or individual taken under the state of emergency? What are the legal remedies for measures taken in application of ordinary legislation on health crisis? Has any change to the available legal remedies been decided on account or brought about by the state of emergency? Were any emergency measures invalidated and for what reasons (competence, procedure, lack of proportionality etc.)
The exercise of the President's exceptional legislative power over state finances under Article 76 (1) of the Constitution is subject to judicial review. The Constitutional Court found that such exercise of exceptional legislative power would be subject to constitutional complaint if it constrained the basic rights of the people (29 February 1996, 93Hun-ma186). According to this case, if the exercise of exceptional legislative power or martial law by the President to prevent the spread of infectious diseases is triggered, it is subject to judicial review afterwards. However, in relation to the spread of COVID-19, the IDCPA (the law which regulates powers of the executive in the times of the health crisis) has not been challenged as to its constitutionality.
17. If parliamentary and/or, where applicable, presidential elections were scheduled to take place during the Covid-19 emergency: were they held? Were special arrangements made, and if so, which arrangements? Was it necessary to amend the electoral legislation? What was the turnout? How was it compared to the previous elections? If they were postponed, what was the constitutional or legal basis for doing so? Who took the decision? For how long were they postponed? Was this decision subject and submitted to parliamentary control or judicial review?
In South Korea, an election was held on 15, April 2020 to select members of the National Assembly. The Election Day was held as provided for in Article 34 (1) of Public Official Election Act. Election officials mandated citizens to wear masks on Election Day, and required citizens to secure sufficient distance between one another while casting their ballot. Plastic gloves and hand sanitizers were provided to the citizens. Thanks to the citizens’ active compliance with distancing policies, the election did not cause the spread of COVID-19. The voter participation rate reached 66.2%. This is the highest voter turnout in the National Assembly member elections history in 28 years.
18. Same questions as under 17), mutatis mutandis, as regards local elections and referendums.
Not applicable
Korea, Republic
Article 76
(1) In time of internal turmoil, external menace, natural calamity or a grave financial or economic crisis, the President may take in respect to them the minimum necessary financial and economic actions or issue orders having the effect of Act, only when it is required to take urgent measures for the maintenance of national security or public peace and order, and there is no time to await the convocation of the National Assembly.
(2) In case of major hostilities affecting national security, the President may issue orders having the effect of Act, only when it is required to preserve the integrity of the nation, and it is impossible to convene the National Assembly.
(3) In case actions are taken or orders are issued under paragraphs (1) and (2), the President shall promptly notify it to the National Assembly and obtain its approval.
(4) In case no approval is obtained, the actions or orders shall lose effect forthwith. In such case, the Acts which were amended or abolished by the orders in question shall automatically regain their original effect at the moment the orders fail to obtain approval.
(5) The President shall, without delay, put on public notice developments under paragraphs (3) and (4).
Article 77
(1) When it is required to cope with a military necessity or to maintain the public safety and order by mobilization of the military forces in time of war, armed conflict or similar national emergency, the President may proclaim martial law under the conditions as prescribed by Act.
(2) Martial law shall be of two types: extraordinary martial law and precautionary martial law.
(3) Under extraordinary martial law, special measures may be taken with respect to the necessity for warrants, freedom of speech, the press, assembly and association, or the powers of the Executive and the Judiciary under the conditions as prescribed by Act.
(4) When the President has proclaimed martial law, he shall notify it to the National Assembly without delay.
(5) When the National Assembly requests the lifting of martial law with the concurrent vote of a majority of the total members of the National Assembly, the President shall comply.
Article 76 of the Constitution provides for the President's exceptional legislative powers in a state of emergency. Therefore, the exceptional legislative powers under Article 76 are recognized only when the requirement that the National Assembly (Parliament) cannot be called is met. When convocations are possible, the National Assembly will review the President's exercise of exceptional legislative power and decide whether to approve it. The exceptional legislation made thereupon is invalid ab initio unless approved by the National Assembly.
Article 77 of the Constitution is a provision for military forces to step in to ensure public order in a state of emergency. When martial law is issued, certain restrictions may be imposed on the warrant system, freedom of assembly, and the powers of the court. The National Assembly is entrusted with parliamentary control over martial orders.
This Act stipulates certain powers and responsibilities of the state, local governments and medical personnel, in addition to the rights and duties of the people. The law also has a wide range of regulations, including those on basic plans and projects for prevention and surveillance management of infectious diseases, process of notification and reporting on diseases, epidemiological investigations, preventive measures, and compensation. The current Act was adopted following the 2015 Middle East Respiratory Syndrome (MERS) outbreak. The Act was initially enacted in 1954 as an independent law with far fewer provisions compared to the current one, and has been so far revised over forty times, largely in response to miscellaneous infectious disease threats, including MERS.
In addition, the Framework Act on the Management of Disasters and Safety, the Quarantine Act, the Regional Public Health Act, and the Prevention of Acquired Immunodeficiency Syndrome Act is already in place to combat the spread of infectious diseases.
In addition, daily economic activities are taking place in South Korea, and no disturbances have occurred. The National Assembly functions normally as usual. Therefore, securing public order by military forces under Article 77 of the Constitution is not required at present, and the declaration of martial law by the President was not considered.
In a theoretical case the President invokes his/her power to exercise exceptional legislative power or martial law, such action is subject to parliamentary control by the National Assembly.
In theory, the exercise of the President's exceptional legislative power over state finances under Article 76 (1) of the Constitution is subject to judicial review. The Constitutional Court found that such exercise of exceptional legislative power would be subject to constitutional complaint if it constrained the basic rights of the people (29 February 1996, 93Hun-ma186). According to this case, if the exercise of exceptional legislative power or martial law by the President to prevent the spread of infectious diseases is triggered, it is subject to judicial review afterwards. However, in relation to the spread of COVID-19, the IDCPA (the law which regulates powers of the executive in the times of the health crisis) has not been challenged in the form of constitutional complaints upon the request of the general courts.
Article 37 (2) of the Constitution provides the following:
Article 37(2) The freedoms and rights of citizens may be restricted by Act only when necessary for national security, the maintenance of law and order or for public welfare. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.
This rule applies to all laws that limit basic rights. Therefore, even if a public health crisis arises due to the spread of infectious diseases, it is not possible to limit the essential content of basic rights in tackling the crisis. In addition, in any case, the restriction of basic rights must comply with the principle of proportionality.
IDCPA imposes an obligation of citizens to cooperate in epidemiological investigations (including the obligation to submit truthful information to the epdiemiological authorities), and those who seriously violate them are subject to criminal punishment (Article 18 (Epidemiological Investigations) and Article 79 (Penalty Provisions)m with penalties going up to two years in prison or a fine of 20 million won. No criminal punishment is to be imposed for minor offenses. However, in exceptional cases when the offender deliberately hides his/her movements and the damage has become very serious, authorities may charge that person. Authorities are allowed to collect CCTV information, credit card usage history, mobile phone-based location information, and immigration records to prevent the spread of infectious diseases and early detection of patients - as defined by the Presidential Decree, in accordance with the IDCPA.
The powers of the authorities are provided in Article 76-2 of the IDCPA.
Article 76-2 regulates Request to Provide Information, which helps to trace their epidemological status, movements, etc. Current legislation contains safeguards aimed at protecting personal information: for example, Personal Information Protection Act, Protection of Communications Secrets Act and Act on the Protection and Use, Etc. of Location Information, etc. Authorities that receive personal information must comply with confidentiality, and personal information must be discarded if the purpose of use is achieved. In addition, personal information holders should be informed of the use of such information.
The Public Official Election Act has provisions regarding postponing elections. Article 196 (1) is as follows: Article 196 (Postponement of Election)(1) If it is impossible to hold an election or an election has not been held due to a natural disaster or terrestrial upheaval or for other unavoidable reasons, the President shall postpone the election in the case of the presidential election and an election of a National Assembly member, and the chairman of the competent constituency election commission shall do so in consultation with the competent head of the local government (including his/her proxy) in the case of an election of a local council member or head of the local government.
If the spread of COVID-19 was more serious, postponement of the election of the National Assembly member could have been a possible option. If such an attempt has been made, it would be subject to judicial review according to general rules.