All the rhetoric and rustling in the National Assembly these days evoke a war front. “We’re at war,” said Jung Chung-rae, the new leader of the ruling Democratic Party (DP), in early August. He referred to the opposition People Power Party (PPP) as “insurrection forces,” rather than a sober “opposition party” capable of being consulted in policy deliberation.
Jung reaffirmed this sentiment in early September when he called “eradicating the insurrection forces” today’s “zeitgeist.” On September 9, during his somber National Assembly speech, he warned that the PPP could be disbanded as an unconstitutional entity unless it ridded itself of pro-insurrection elements.
The PPP is unnerved. Special counsels have searched and seized items from some of its legislators’ homes and offices for their alleged part in the Yoon administration’s failed self-coup and former President Yoon Suk-yeol’s and his wife’s myriad scandals. Jang Dong-hyun, the PPP’s new leader, swore to “bring down” the Lee Jae-myung administration for supposedly trampling his party and liberal democracy. Song Eon-seok, the PPP floor leader, herded dozens of the PPP legislators in the National Assembly hallway to blockade special counsel officials from executing their search warrant.
According to the PPP, the special counsel investigations are “delusional,” and President Lee Jae-myung is a “dictator.” In early September, its legislators turned up to the National Assembly for a general meeting wearing funeral attire to mourn what they perceive to be the demise of democracy. The vast majority of PPP legislators still rue Yoon’s impeachment; a sizable portion of them still believe Yoon’s declaration of martial law was justified.
As the PPP is cornered into an existential crisis, its members are sparing no efforts to malign the DP and the Lee administration. Na Kyung-won, a five-time PPP lawmaker who is probably the most well-known female conservative, is making the farcical argument that the DP is an insurrection force intent on “annihilating the opposition party.”
National Assembly committee meetings have been reduced to petty shouting matches. While the PPP denounces the DP’s reform packages overhauling the prosecution, press, and judicial branch, the latest flashpoint has been the DP’s bill to establish a special tribunal to try Yoon and those who aided his botched self-coup.
The bill came after some judges showed leniency toward Yoon (who was released from detention in March) and former Prime Minister Han Duck-soo (whose arrest warrant was denied in late August despite his streak of perjury and destruction of evidence). Public concern has arisen as to the possibility that right-leaning judges may lend sympathetic ears to those involved in Yoon’s short-lived self-coup and hand down moderate sentences or even acquit them.
Setting up a special tribunal to bypass the existing legal structure is rare in South Korea. There have only been two such instances, one in 1948 to try those who collaborated with Japanese colonial authorities, and the other in 1960 following a massive election fraud. Special tribunals are resorted to when public trust in the judiciary is eroded on matters of unprecedented national importance.
The DP submitted a bill to create a special tribunal with three justices to be recommended by the National Assembly, the Supreme Court, and the Korean Bar Association, and appointed by the chief justice of the Supreme Court.
Heated public discourse on its legality ensued. Unlike in 1948 and 1960, when South Korea drew up new constitutions, the country’s current constitution doesn’t mention the National Assembly’s authority to install a special tribunal. Instead, it stipulates the citizens’ right to a trial by a judge appointed according to the constitution and legislation. In the absence of the constitution’s explicit reference to setting up such special tribunals, everyone is wary.
The DP’s proposal meets the constitutional requirement that judges should be appointed by the chief justice of the Supreme Court. Still, the constitution protects judicial independence by allowing the judiciary alone to determine its jurisdiction. There is also room for violating the Court Organization Act, which sets down some procedural integrity to be observed for trials when it comes to allocation of cases and clerical work. For instance, case allocation should be random to ensure fair trials with disinterested judges.
Yet, the constitution does allow the National Assembly’s legislation to determine the structure of the Supreme Court and other courts. The DP’s bill intends to create this special tribunal within the Seoul Central District Court as a special department to handle insurrection cases. Shaping up a court’s structure this way is entirely within the legislature’s power.
Still, since the bill would open up a hazy legal realm, there’s a possibility of prolonging the judicial process should the cases be consigned to a special tribunal. Those on trial for insurrection could file a trial review for procedural impropriety. Worse, all the special tribunal’s eventual verdicts could be rendered null should a future Constitutional Court rule the tribunal’s existence to be unconstitutional.
The legal minutiae and ambivalence aside, the special tribunal would be subjected to heavy censure from the right for its potential partisanship, stoking further political polarity. The PPP is already going overboard, comparing the DP to the Nazis for the bill. It’s only exacerbating the far-right’s sense of victimhood.
Meanwhile, the DP could just be dangling this bill as a way to pressure the judiciary to act sensibly. The judiciary is independent, but the president and National Assembly can pack the Supreme Court and the Constitutional Court with justices of certain political colors. Some measure of oversight of the judges by the legislature and civil societies are necessary. The DP, with its majority in the National Assembly, can introduce such reforms. Even passing the special tribunal bill into law would be a breeze for the DP. Letting the judges know that the DP could humble the judiciary if it chose to could already serve as a deterrent against favoring Yoon and those under investigations for aiding and participating in last year’s insurrection and the Yoon administration’s corruption.
Yoon and his stooges are under trial for running roughshod over the constitution and rule of law. Bringing them to justice under the rubric of the very constitution they so disparaged could potentially be more impactful and meaningful. Even if they receive unduly lenient legal treatment thanks to some right-leaning judges, this will be in turn judged by the voters in future elections and history.