For someone who has spent nine years studying for the bar exam in addition to four years as an undergraduate law major, President Yoon Suk Yeol seemed to have no idea about the constitutional provision regarding martial law and the relevant legislation.

If he had prosecuted a case the way he declared martial law, the defendant would have walked free. If Yoon had sat the bar exam the way he handled the declaration, well we know. In this instance at least, we can only be thankful for Yoon's incompetence or unpreparedness. The making of the declaration and its manner of execution was marred by all manner of legal problems both procedurally and substantively and these will ultimately come back to bite Yoon.

First, we need to debunk some popular beliefs about emergency martial law. The declaration of emergency martial law does not give a carte blanche to whoever is in power. It is an emergency power given to the executive to be used in a certain narrow set of circumstances for strictly defined purposes. There are clear demarcations on what a commander must not do under martial law alongside what powers may be exercised. But because of our experience of misuse of martial law powers by past authoritarian regimes, there is a lasting impression that it is ruled by force without any strictures. That is not the case. If proper procedures and rules are not observed, declaration of martial law itself could be illegal. Here are some of those faults.

Further, article 77 of the Constitution gives the president the power to declare martial law in times of war, a serious disaster (natural or man-made, including external threats) or an equivalent state of emergency in order to respond to military necessity or for the purpose of maintaining public order. Nowhere in Yoon's declaration of martial law could one find any reference to constitutionally approved grounds for declaring martial law. Instead, he cited as reasons for his declaration "anti-state forces" in league with North Korea working against the interests of the nation. The "anti-state forces" he mentioned were only a veiled reference to the opposition party. Yoon pointed to the number of impeachment motions and special prosecutions made by the opposition party as proof of their "anti-state" stance. Nowhere does he mention the proven corruption of various public officials, especially prosecutors, as well as his own dereliction of duties that have led to such measures having to be taken by the opposition party.

Second, the declaration of martial law must not only have proper constitutional grounds but must also comply with the formal requirements under the Martial Law Act, which requires any declaration of martial law to expressly state the reasons, the type (whether emergency or security martial law), the time and geographical area of execution and the martial law commander. Yoon's declaration failed to give adequate reasons or reasons that meet constitutional requirements, which is like giving no reason at all. Nor does it identify the place where martial law would apply, and he failed to name the martial law commander. (Leaving the area blank does not mean it applies nationwide automatically. It must be clearly stated.) All of this clearly breaches the requirements of Article 3 of the Martial Law Act.

Third, the declaration of martial law must go through a process of examination by the Cabinet. It could not be confirmed whether this was duly complied with and there is still a question mark over the matter.

Fourth, once martial law is declared, the president must immediately, without any delay, notify the National Assembly. However, the National Assembly never received any notification from the president regarding martial law. In fact, as the quorum of lawmakers managed to gather inside the legislature building, forcing their way through the special forces and some even climbing over walls to vote to repeal martial law, the speaker of the legislature waited and waited for the notification from the president to arrive. It never did. In the end, the speaker took constructive notice so that he could move the motion without further delay.

Fifth, the first paragraph of martial law Decree No. 1 promulgated by Park An-soo, the head of the army appointed martial law commander by Yoon and who is also Yoon's high school alum, close to midnight on Tuesday prohibited all political activities by the National Assembly, political parties, as well as all political assembly, demonstrations and associations. Although the Martial Law Act gives the martial law commander authority over the administrative and judicial branches, once martial law is declared, there is no authority over the legislative branch. This is deliberate because only the legislature, representing the people, can call for the revocation of martial law and act as checks and balances on the vast and concentrated power of the martial law regime. Any attempt to prohibit political activities of the legislative branch is in breach of the Martial Law Act and is unconstitutional.

There are numerous other serious, substantively illegal aspects of Yoon's declaration of martial law, including sending special forces to occupy the National Assembly building and ordering the leader of the ruling and opposition parties as well as the National Assembly, despite the fact that the Constitution and the Martial Law Act both provide that Assembly members have immunity from arrest and detention. (There is an exception if they are caught in the commission of a crime, which Yoon tried to exploit deviously by prohibiting political activities). These acts are doubly serious as they may well amount to insurrection or treason, which is punishable by death or life sentence under the Criminal Code. There is no presidential immunity for these crimes meaning that arrest and detention are on the cards.

It is difficult to fathom why Yoon did what he did. There is endless speculation about his motives, but what is clear is that this was a desperate move by a desperate man. There could not be a more clear demonstration of how unfit he is for the office. And his lack of judgment and inability to accept reality means there is no guarantee this will not happen again. Whatever the reason, Yoon's shocking gambit provides more than ample grounds for impeachment. But impeachment takes time and there is the uncertainty surrounding the Constitutional Court, whose bench is only partially occupied. The best thing would be for Yoon to step down, but there is virtually zero chance of that happening. Is it now time for the law enforcement agencies to show their mettle?

Cho Hee-kyoung is a professor of law at Hongik University. This column does not necessarily reflect the opinion of The Korea Times.