Legal scholars specializing in South Korea’s constitution have refuted President Yoon Suk Yeol’s claim that it was unconstitutional for parliament to appoint a special prosecutor to investigate his wife over allegations of stock manipulation, among other things. Members of the opposition-led legislature worked within the powers granted to them by law, two scientists told AFP separately.
Parliament’s appointment of a special prosecutor “does not violate the separation of powers,” Kim Hae-won, a constitutional law professor at Pusan National University Law School, told AFP (archived link).
“Theoretically, I think it’s as clear as one plus one equals two,” Kim said.
President Yoon previously denounced a bill backed by the opposition Democratic Party (DP) that aimed to appoint a special prosecutor to investigate the country’s first lady, Kim Keon Hee, over allegations of stock manipulation and interference in party and political affairs. state affairs.
During a press conference on November 7, 2024, Yoon defended his wife, saying that the power to initiate investigations and appoint prosecutors “are inherent functions of the executive branch.”
“There is no country in the world where the decision to open a special prosecutor investigation is made by the legislature,” he said. “This clearly violates the separation of powers in liberal democracies.”
He further said it is “unconstitutional” to appoint a special prosecutor opposed by the president and the ruling party.
Separation of powers
Law professor Kim told AFP: “Our constitution does not prohibit the establishment of independent administrative bodies outside the president’s authority.”
He added that no government department “completely monopolizes their respective powers.”
“If we follow the president’s reasoning, even the Corruption Investigation Office for High-ranking Officials (CIO) would be unconstitutional,” Kim said, referring to an independent anti-graft agency that he said has executive functions.
Kim also said the legality of special prosecutors is consistently enforced.
Such prosecutors are appointed by the National Assembly and appointed by the President to investigate cases deemed vulnerable to political interference (archived link).
The Constitutional Court in Seoul ruled in 2019 that whether to conduct a special prosecutor investigation for a particular case is a “matter for the National Assembly to decide” (archived link).
Son In-hyuk, a professor of constitutional law at Yonsei University Law School in Seoul, said the court reached the verdict at the time “specifically because the special prosecutor system is intended for investigating controversial cases” involving conflicts of interest (archived link).
Bipartisan consensus
Both experts also refuted Yoon’s comments that it was unconstitutional for parliament to have a special prosecutor who is that? “opposed by the president and the ruling party”.
Kim said the constitution requires a majority vote for decisions made in the legislature, with provisions for specific majorities if necessary.
“Legally, the issue is not whether the opposing parties reached an agreement, but whether the law was properly promulgated according to the procedures laid down in the Constitution,” he said.
He further rejected the claim because it was unfounded. “Let’s say there was only one lawmaker from the ruling party in the legislature. Would they still argue that the law should be rejected simply because that one person is against it?”
This was also confirmed in the 2019 Constitutional Court ruling deemed it “reasonable” and “legitimate” to exclude the ruling party from the candidate nomination process.
Son agreed that bipartisan consensus is legally irrelevant. “I don’t find it persuasive to argue the constitutionality of a case based on whether such an agreement exists,” he said.
Multiple news reports revealed that special counsel investigations had previously been conducted without bipartisan agreement, including a 2003 investigation into allegations that South Korea’s spy agency paid North Korea for a summit meeting and a 2012 investigation involving the son of then-President Lee Myung-bak was involved (archived links here, here, here and here).
Special Prosecutor
Following his comments, Yoon’s critics pointed out that as a prosecutor he played a key role in high-profile investigations into special prosecutors, including in the corruption scandal that toppled his predecessor Park Geun-hye (archived link).
Multiple social media posts — including here, here and here on X — also claimed that “special prosecutor investigations are unconstitutional” and attributed the message to the president.
Yoon has struggled with low approval ratings for months, amid accusations that he granted a personal favor to a self-styled “power broker” who helped the president win his election (archived link).
His wife Kim was under scrutiny for her alleged role in a stock manipulation scheme.
South Korean media reported that prosecutors dropped charges against Kim after concluding that she was unaware that several of her bank accounts had been used in a pump-and-dump scheme between 2009 and 2009 involving Deutsch Motors, a BMW dealer. cars in South Korea, was involved. 2012 (archived link).
However, opposition lawmakers continued to introduce a bill to investigate her alleged role in the scheme, along with separate allegations that she had interfered with the conservative ruling People Power Party’s candidate nomination process in the run-up to the recent elections, including an election campaign by 2022. elections and state affairs (archived link).
South Korea’s National Assembly passed a bill on November 14, 2024 seeking to appoint a special prosecutor to investigate Kim (archived link).
Analysts widely expect that President Yoon will veto the bill and send it back for a revote.
