Yoon Suk-yeol's Conflict of Interest and Lee Jae-myung's Conflict of Interest: Is an Independent Counsel Without the Authority to Withdraw Charges Acceptable? [Reporter's Notebook]

During his presidency, former President Yoon Suk-yeol exercised his right to demand reconsideration (hereinafter referred to as the "veto") three times on independent counsel bills concerning his spouse, First Lady Kim Keon-hee. In response, not only members of the Democratic Party of Korea but also numerous legal scholars criticized this as a "conflict of interest."

Those Who Criticized the "Kim Keon-hee Independent Counsel Bill" as a "Conflict of Interest"

▶ Representative Jeon Hyun-hee (then-supreme council member of the Democratic Party): "Exercising a veto that presents a conflict of interest to block an investigation into one's spouse will become a boomerang that cuts off the life support of the Yoon-Gun-hee [Yoon Suk-yeol + Kim Keon-hee] regime." (Remarks made at the Democratic Party Supreme Council meeting on November 27, 2024)

▶ Representative Lee Un-ju (then-supreme council member of the Democratic Party): "Since it is abundantly clear that his spouse, Ms. Kim (Keon-hee), is a suspect in the independent counsel investigation, exercising a veto on it is an unconstitutional exercise of veto power that violates the constitutional principle of conflict of interest." (Remarks made at the Democratic Party Supreme Council meeting on September 30, 2024)

▶ Lee June-il, Professor at Korea University School of Law: "Bills that specifically target the president or their family members have an inherent difference, as a conflict of interest arises in relation to the president, who holds the authority to exercise the veto." (Remarks made at an emergency forum hosted by the Democratic Institute on January 5, 2024, titled "The Kim Keon-hee Bulletproof Veto: What is the Problem?")

The criticism did not stop there. Seventy-four lawmakers from the Democratic Party and the Rebuilding Korea Party, including Representative Jeon Hyun-hee, proposed an amendment to the Act on the Prevention of Conflict of Interest of Public Officials. The amendment aimed to restrict the president's exercise of veto power over bills targeting the president or their family members. It was the very first bill proposed in the 22nd National Assembly.

The Kim Keon-hee independent counsel bill could only be enacted after former President Yoon Suk-yeol was impeached. The outcome is well known to everyone. The Democratic Party lawmakers and others who criticized former President Yoon's exercise of the veto as a conflict of interest would naturally still hold the same view today. The problem is that the so-called "Independent Counsel Bill on Allegations of Fabricated Prosecution" concerning President Lee Jae-myung also struggles to escape conflict-of-interest controversies for the exact same reason.

"Conflict of Interest" Also Applies to the "Fabricated Prosecution Independent Counsel Bill"... Is Removing Only the Authority to Withdraw Charges Enough?

The reason conflict-of-interest controversies arose regarding the Kim Keon-hee independent counsel bill was that the president exercised a decisive power (the veto) over a bill closely tied to the interests of the president's family. Under the current "Independent Counsel Bill on Allegations of Fabricated Prosecution" concerning President Lee Jae-myung's cases, which was proposed by 31 Democratic Party lawmakers, the president would exercise a decisive power (the authority to appoint the independent counsel) over a bill closely tied to the president's own interests. If it is a conflict of interest for a president to exercise authority over a bill related to their family, it is difficult to avoid the conclusion that it is also a conflict of interest for a president to exercise authority over a bill related to themselves.

Until now, the primary issue pointed out in the "Independent Counsel Bill on Allegations of Fabricated Prosecution" has been that the independent counsel would exercise the authority to withdraw charges. Even among so-called progressive media outlets and legal experts, the prevailing assessment is that this is "unconstitutional" or "excessive." However, some argue that if the authority to withdraw charges is excluded, introducing an independent counsel to uncover the truth is necessary and justified. Others suggest that after the independent counsel uncovers the truth, the charges could be withdrawn through the Minister of Justice's exercise of investigative direction or the Prosecutor General's exercise of command authority.

But even if the clause granting the independent counsel the authority to withdraw charges is deleted from the bill, the conflict-of-interest issue remains unresolved. This is because the primary beneficiary of the independent counsel's investigation and prosecution is President Lee Jae-myung, who holds the authority to appoint the independent counsel. To reiterate, if the logic holds that the president exercising a veto over a bill related to their family is a conflict of interest, then the president exercising appointment authority over a bill where they themselves are the beneficiary is also a conflict of interest. If it is human nature to prioritize one's own interests over those of a spouse, the potential for a conflict of interest in exercising authority over a bill related to oneself could be considered even greater than doing so for a bill related to one's spouse.

(According to Article 4 of the Independent Counsel Bill on Allegations of Fabricated Prosecution currently pending in the National Assembly, if the president fails to appoint an independent counsel, the eldest among the candidates recommended by each parliamentary negotiating group will be automatically appointed. However, if the president is unable to exercise the appointment power in the first place due to a conflict of interest, this clause could lead to a ridiculous spectacle where each negotiating group competes to recommend their oldest candidate.)

The Answer Already Exists... We Must Follow Principles, Not Exceptions

The most uncontroversial way to handle the allegations of "fabricated prosecution" in President Lee Jae-myung's cases has already been answered. It is to uncover the truth through existing systems and procedures generally applied to high-ranking public officials—rather than a special procedure designed solely for a specific individual, the sitting president—and to have the legitimacy of the prosecution judged through existing systems and procedures generally applied to all citizens. This means that the proper path is for the Corruption Investigation Office for High-ranking Officials (CIO), which was established under the leadership of the Democratic Party, to investigate the allegations of fabricated prosecution, and for the legitimacy of the charges already filed in court to be judged through a trial.

Our Constitution guarantees equality before the law (the right to equality) for all citizens. Accordingly, the enactment of laws that apply only to specific individuals or individual cases (individual-case laws) is in principle prohibited. However, constitutionality can be recognized only "when there is a rational reason that can justify the inequality inherent in the individual-case law." (Constitutional Court Decision 96Hun-Ka2, etc., decided on February 16, 1996). The independent counsel bill on allegations of fabricated prosecution is a typical individual-case law. Yet, in a situation where there is a potential conflict of interest regarding the exercise of presidential authority, and the CIO already exists as a general system to investigate and prosecute allegations of abuse of authority by prosecutors, questions can be raised about whether the legitimacy of such an individual-case law should be recognized solely on the grounds of legislative discretion.

Leaders who try to force the recognition of an exceptional state instead of following principles ultimately end up unhappy. The immediate past president was a prime example. I hope to see a president who uses principles, not exceptions, as the foundation of their power.
※ Please note: This article was translated by AI and may contain errors.