(EDITORIAL from The Korea Herald on Nov. 10)

Law for Lee
: Special counsel act appears designed to benefit one defendant, threatens judicial independence

The Special Counsel Act on Fabricated Indictments, which passed the National Assembly last week, is likely to generate considerable controversy over its findings because of its numerous flaws.

The ruling Democratic Party of Korea, which commands a large parliamentary majority, initially sought to ram the bill through before the local elections in June but backed down amid public criticism. About six months later, after making only minor revisions, it pushed the legislation through the National Assembly on Friday.

The party removed a provision authorizing the special counsel to withdraw indictments. But that change does not alter the bill's underlying purpose: to undermine criminal trials involving President Lee Jae Myung, who is himself a defendant. Half of the 12 cases assigned to the special counsel involve Lee, and the trials in those cases are currently suspended. That is why the main opposition People Power Party has branded the legislation an attempt to absolve Lee of his alleged crimes and taken its protest to the streets.

Although the law cites alleged fabricated indictments under the Yoon Suk Yeol administration as its rationale, it is little more than legislation tailor-made for one person: President Lee. Not a single ordinary citizen stands to benefit. It is hardly an exaggeration to describe it as an unconstitutional special law designed for Lee alone. Emboldened by its parliamentary majority, the ruling party appears to be ignoring public opinion and doing as it pleases.

Deleting the indictment-withdrawal provision may prove to be little more than cosmetic window dressing. The justice minister could still use the special counsel's findings as grounds to direct the prosecutor general to withdraw indictments. The provision, which requires defendants who cooperate with an investigation to receive reduced penalties, has also drawn criticism that it is intended to pave the way for dropping charges in cases involving Lee. Defendants standing trial in those cases could be tempted to reverse their previous statements in hopes of receiving more lenient treatment.

Another serious problem is that Lee, despite being a defendant, can appoint the special counsel and deputies tasked with investigating his own cases. The law allows the Democratic Party, the People Power Party and the Rebuilding Korea Party to each recommend a candidate. Yet it is widely expected that someone aligned with the ruling bloc will be appointed. This creates a serious conflict-of-interest concern and runs counter to the special counsel system's purpose of ensuring fairness and the administration of justice. It also violates a fundamental principle of the rule of law: No one can be a judge in their own case.

The fact that the president is both a defendant in the cases and the appointing authority for those who will investigate them raises an obvious question about whose interests the process is meant to serve. A special counsel mechanism should reinforce public confidence, not deepen doubts about political interference.

The law also grants 20 prosecutors dispatched to the investigation special powers under a version of the Criminal Procedure Act that has since been amended. Having stripped prosecutors of their investigative powers in the name of prosecutorial reform, the ruling party has now made an exception for this special counsel, allowing investigators to exercise both investigative and prosecutorial powers. Applying a repealed version of the law raises serious questions about the provision's constitutionality and legality.

Under these circumstances, whatever findings the special counsel team eventually releases are likely to face questions about its fairness and impartiality. A special counsel investigating cases already before the courts is fundamentally flawed from the outset and threatens judicial independence, a cornerstone of the administration of justice.

With its many flaws, this special counsel law would be unthinkable in a democracy founded on judicial independence and the separation of powers. The ruling party may yet face a backlash whose scale is difficult to foresee.
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