[VIEWPOINT]The legality of the counsel bill

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[VIEWPOINT]The legality of the counsel bill

The National Assembly approved the appointment of an independent counsel to investigate the alleged corruption of President Roh Moo-hyun’s aides. The bill was passed by 184 votes among 272 registered lawmakers. The result of a successful collaboration between the Grand National Party and the Millennium Democratic Party, the bill has raised a new legal question along with considerable political ripples. Prosecutors, who also are investigating the matter, have said that they will ask the Constitutional Court to rule on the legitimacy of the bill.
When the Grand National Party introduced the idea of an independent counsel, not many expected the situation to develop this far. Critics thought that the purpose of the independent counsel bill would be to distract public attention from the prosecutors’ investigation. Political observers speculated that even if the Grand National Party used its clout as the majority party in the Assembly to pass the bill, Mr. Roh would be likely to use his veto power.
A breakthrough came when the Millennium Democratic Party agreed to back the Grand National Party’s initiative. The Grand National Party thus can share the political burden it would otherwise have to bear alone. By securing the approval of two thirds of the registered lawmakers, the coalition of the Grand National Party and the Millennium Democratic Party has enough votes to pass the bill again in the event Mr. Roh vetoes it. As a result, the Blue House and the prosecutors alike now are counting more on the Constitutional Court’s judgment than Mr. Roh’s veto power.
But the case needs to be studied further before it is brought to the Constitutional Court for resolution. It is still disputable whether the appointment of an independent counsel would restrict the jurisdiction of the prosecutors, and whether the infringement, if any, could be confirmed and corrected by a Constitutional Court judgment.
Along with reviewing and adjudicating constitutional issues, ruling on competence disputes is one of the Constitutional Court’s functions. The court sorts out constitutional disputes based on the constitution. In principle, a competence dispute can only concern the existence and scope of authority designated by the constitution. The Republic of Korea has modeled its constitutional court system after that of Germany, which made it clear that the court’s jurisdiction is limited to cases related to the constitution.
But Article 61, Clause 1 of the Constitutional Court Act says a competence dispute can be brought to the court “when the plaintiff’s competence granted by the constitution or laws is infringed or is in obvious danger of being infringed.” Based on this law, which gives wider jurisdiction to the court, the prosecutors could file a complaint.
But despite the clause, questions remain whether the prosecutors’ claim is legitimate and proper. It might be absurd to say that the National Assembly, the legislative body, has infringed upon the competence of the prosecutors, whose jurisdiction is defined by the law, not the constitution. If prosecutors’ authority were granted by the National Assembly, the legislature, it would be reasonable to assume that the right could be similarly restricted by the Assembly.
This does not mean that the National Assembly does not have to follow the rules it has set. But the National Assembly can rightfully revise a law it created or designate a set of exceptions. The legislation to designate an independent counsel is legally valid because it has been recognized as an exception to existing laws, such as the Public Prosecutor’s Office Act. Of course, the substance and application of the law can be questioned. But in a competence dispute, the Constitutional Court does not put the content of a law on review, but rather judges whether the National Assembly has the authority to legislate such a law.
Certainly, an independent counsel bill is not free of all restrictions. For instance, the accused in a case may file for a review of constitutionality, or a constitutional complaint to ask the Constitutional Court to rule on the legitimacy of the contents of the law.
But the most important judgment would come from the citizens and how they evaluate the effort. Once the bill has passed the Assembly, the Grand National Party and the Millennium Democratic Party need to pay attention to how the voters look at them, not the prosecutors, the president or the Constitutional Court.
After all, it was the citizens who voted for the lawmakers to represent them. If the citizens do not approve of the legitimacy of the independent counsel bill, the future of the bill, and the future of the parties and the politicians, is bound to be murky.

* The writer is a professor of constitutional law at Korea University. Translation by the JoongAng Daily staff.

by Chang Young-Soo
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