[VIEWPOINT]A violation of basic rightsThe so-called “X-file” case is stirring up the whole nation. As the case involves the names of the owner of a conglomerate, former publisher of a major media outlet and leading politicians, it has naturally become the focus of the people’s attention. But from a lawyer’s standpoint, I have many concerns about the developments of the situation involving the case. I am particularly concerned about the way the broadcaster that obtained and leaked the X-file is concentrating its reports on the contents of illegally tapped conversations and the public’s interest is directed at that part accordingly.
The main points of this case are as follows: First, a national agency carried out illegal wiretapping widely and in that process conversations about providing political funds between an executive officer of a conglomerate and the publisher of a newspaper were illegally recorded. Second, a government official who was on the eavesdropping team smuggled out the illegally recorded tape when he retired. Third, a threat was committed with the tape, and when the threat failed, the former government employee handed the tape over to a broadcaster.
From the viewpoint of a lawyer, what is the most problematic of the three points is the first one. This is so because the state power directly violated the people’s basic rights guaranteed by the constitution. As you know, the modern constitution stipulated the protection of the people’s basic rights as the first duty of the state in operating national institutions. And the people’s right to plan and enjoy free and private lives or the right to keep their privacy free from others’ infringement is the most essential right among the people’s basic rights. Therefore, the national agency’s infringement on the freedom of the people by illegal means like wiretapping is an unforgivable crime. As such, regardless of the statute of limitations on prosecution, an investigation should be carried out into how such a criminal act happened, who directed the act and who did it, and those involved in the incident should be excluded from public service or pressed for political responsibility. Also, institutions should be improved to prevent a recurrence of the same or similar incident.
The next important point is that the blackmailer’s purpose should not be achieved. I don’t know if the purpose of the person who disclosed the recorded tape to the news media was to punish the conglomerate for not succumbing to his threat or to make his next threat easier, but in any case his purpose should not be accomplished. In this regard, I think the present attitude of reports that question only the contents of the recorded conversations is problematic.
Let’s suppose the former agent has another recorded tape and he intends to extort money from other conglomerates by a threat with the tape. At present, the honor of those people who are the victims of the illegal wiretapping is impugned. Furthermore, they are accused of criminal charges by civic groups. In this reality, people whose conversations are recorded on the tape are highly likely to succumb to the blackmail.
Also, if the press keeps calling into question only the contents of the tape, the state power would be tempted to gain a political edge by discovering the shameful secrets of opposition parties through eavesdropping and leaking them to the press. And this would lead to a society quite contrary to the free and democratic society that we aspire to build.
It is a truly dangerous idea to think that it would be good to expose and punish crimes even by means of illegal tape recording. As shown in the example of Nazi Germany, history clearly shows what unhappy consequences state power could cause unless it is controlled legally. Here lies the reason why the illegality of wiretapping should be discussed before pressing for responsibility on the conglomerate and conservative media.
Criminal procedure law has a principle that “rejects illegally obtained evidence.” This principle is established by experience that however appropriate an evidence may be to prove a crime, if illegal collection of the evidence is accepted, a crime might be disclosed but in many other cases, illegal activities of investigative agencies would be tolerated and as a result, this practice would give more harm to the people. This principle should be naturally respected in reporting the illegal eavesdropping incident.
There is no society where there is no eavesdropping or blackmailing, but where every crime is exposed. What we should choose now is whether to allow eavesdropping committed widely to prevent a crime or to accept the consequences of letting a criminal go while strictly banning illegal wiretapping. In the eye of a lawyer, the choice is self-evident.
* The writer is a lawyer and the president of the law firm Barunlaw. Translation by the JoongAng Daily staff.
by Kang Hoon