Six of 12 investigative targets tied to Lee — ruling party also gets nominee recommendation rights

Investigative powers limited to seconded prosecutors spark equality concerns; judicial independence also at issue

With a second-instance ruling pending in the Public Official Election Act violation case against former President Yoon Suk Yeol, the Democratic Party of Korea has pressed the People Power Party by raising the issue of returning 39.7 billion won in reimbursed campaign expenses. Former President Yoon Suk Yeol [Newsis]
With a second-instance ruling pending in the Public Official Election Act violation case against former President Yoon Suk Yeol, the Democratic Party of Korea has pressed the People Power Party by raising the issue of returning 39.7 billion won in reimbursed campaign expenses. Former President Yoon Suk Yeol [Newsis]

A constitutional debate is intensifying over the so-called fabricated-indictment special prosecutor act, a bill designed to investigate allegations that prosecutors under the Yoon Suk Yeol administration manipulated investigations and indictments. Legal experts are divided over whether it is constitutionally permissible for President Lee Jae Myung to personally appoint the special prosecutor who would investigate the handling of cases directly involving Lee himself. Additional flashpoints include a provision granting investigative authority exclusively to prosecutors seconded to the special counsel's office, and the inclusion of cases already before the courts as investigative targets.

According to legal circles Sunday, the fabricated-indictment special prosecutor act — passed by the National Assembly on Friday under the leadership of the Democratic Party of Korea — would task a special prosecutor with determining whether investigations and indictments carried out during the Yoon administration involved manipulation or abuse of authority.

Under the bill, the Democratic Party, the People Power Party and the Rebuilding Korea Party would each nominate one candidate for special prosecutor, with President Lee making the final appointment from among the three nominees.

The central problem, critics say, is that six of the 12 investigative targets specified in the bill — exactly half — involve cases connected to President Lee himself.

Those cases include breach-of-trust charges related to development projects in Daejang-dong, Wirye new town and Baekhyeon-dong; Public Official Election Act violations tied to the Daejang-dong and Baekhyeon-dong developments; the SBW funds-to-North Korea case; and a bribery case involving Seongnam FC sponsorships.

Critics argue that a structure in which the president personally selects the special prosecutor who will scrutinize the propriety of investigations and indictments in his own cases may violate the constitutional principle of separation of powers.

Kim Dae-hwan, a professor at the University of Seoul School of Law, said the principle that "no one can be a judge in their own case" represents a form of natural justice that stands above even the constitution. "Appointing the person who will investigate your own cases is deeply contradictory and incompatible with the constitution," Kim said.

Cha Jin-a, a professor at Korea University School of Law, said appointing the prosecutor who will investigate one's own cases makes it inherently difficult to ensure the objectivity and impartiality of the special counsel's investigation.

Past rulings by the Constitutional Court have also been drawn into the debate.

During the 2016 state-affairs manipulation special prosecutor proceedings, Choi Seo-won filed a constitutional complaint arguing that it was unconstitutional to exclude the then-ruling Saenuri Party from recommending special prosecutor candidates.

The Constitutional Court acknowledged the legislature's broad discretion over the nomination and appointment process, but found that granting the ruling party recommendation rights while President Park Geun-hye was a potential investigative target risked creating a conflict of interest that would undermine the purpose of the special prosecutor system.

At the time, the court held that excluding the ruling party from the pool of nominators did not lack justification or rationality.

Some legal observers say the current bill — which gives the ruling party a nomination right and vests the final appointment power in the president — leaves little room to recognize broad legislative discretion.

There are counterarguments, however. Supporters contend that because this special prosecutor would investigate alleged abuses of investigative and prosecutorial authority by past prosecutors — rather than directly probing criminal charges against President Lee — the mere inclusion of Lee-related cases is not sufficient grounds to declare the appointment structure unconstitutional.

Lee Heon-hwan, a professor at Ajou University School of Law, said that while the inclusion of presidential cases among those suspected of fabricated indictments may invite political criticism, "it is not a legally valid criticism."

Jeong Tae-ho, a professor at Kyung Hee University School of Law, said the special counsel's investigation constitutes an executive function, and that past special prosecutors examining allegations surrounding a sitting president were also appointed by the president — making it difficult to view the arrangement as a constitutional problem.

A separate controversy surrounds the provision granting investigative and command authority to prosecutors seconded to the special counsel's office.

Under a revised Code of Criminal Procedure that took effect last month, prosecutors at the prosecution service lost all investigative authority. Yet the fabricated-indictment special prosecutor act includes a supplementary provision applying the pre-revision rules on investigative and command authority to seconded prosecutors.

In effect, prosecutors handling ordinary cases have no investigative authority, while those seconded to the fabricated-indictment special counsel's office would be granted it as an exception.

Cha said this disparity could run afoul of the constitutional principle of equality.

Cha explained that suspects in ordinary cases could argue they have a right to be investigated by prosecutors with legal expertise alone, while suspects in special counsel cases would have no choice but to be investigated by prosecutors holding both investigative and prosecutorial authority — a distinction that could itself be challenged.

Lee, by contrast, said granting exceptions through special legislation falls within the legislature's discretionary authority.

However, Lee said the method of applying lapsed statutory provisions by reference — rather than explicitly re-enacting them — leaves room for violations of the principles of clarity and due process.

The inclusion of cases already under trial or with final verdicts as investigative targets has also drawn criticism.

Kim said that whether an indictment was improper is a matter for the courts to decide, and that "creating a separate special prosecutor to bypass the judiciary without any special triggering circumstance is itself a challenge to the separation of powers and can be seen as interference in ongoing trials."

Cha also warned that even without a provision allowing the special prosecutor to withdraw charges, a conclusion by the special counsel that an investigation or indictment was fabricated could in effect exert pressure on the presiding court.

Cha went further, raising the possibility that judges who declined to follow the special prosecutor's findings could face complaints under the crime of perverting the law — a scenario that would pose a serious threat to judicial independence.

Jeong disagreed, saying the bill is about "examining the propriety of how investigative and prosecutorial authority was exercised — not ordering courts to incorporate those findings" — and rejected the argument that it infringes on judicial independence.

Ultimately, the constitutional debate over the fabricated-indictment special prosecutor act is expected to continue, centering on three issues: the potential conflict of interest arising from the president's power to appoint the special prosecutor, the exceptional grant of investigative authority to seconded prosecutors, and whether the bill threatens the independence of the judiciary.


sjy@heraldcorp.com