[Viewpoint]Moving toward a lawless statePresident Roh Moo-hyun has belittled the Korean Constitution. On Tuesday, the 59th anniversary of Constitution Day, he called it “a backward system originating from the backwardness of Korean politics” in an article titled “We must reform our constitutional system” on Blue House Briefing, the official presidential Web site.
He also wrote that “The present system restrains the development of democracy and perpetuates the inefficiency of Korean politics.”
After reading the article, I could understand why the president humiliated the Constitution several weeks ago by calling it the “damn Constitution.” However, the current Constitution is the fruit of democracy won through a struggle against an authoritarian government in June 1987. The people’s aspiration for electing the president directly is embodied in the Constitution, as is principle of the separation of legal, administrative and judicial powers.
Therefore, it seems that the president said the Constitution restrains the development of democracy because he wanted to attribute his faulty administration to the Constitution. It also seems that he said the Constitution perpetuates the inefficiency of Korean politics because the Constitution and other legal provisions stood in the way of his engaging in political activities when he wanted.
It was learned that the Blue House is considering a special pardon for prisoners on Aug. 15, Liberation Day. If the pardon is given, it will be the last one granted under the current government. President Roh has so far turned a deaf ear to public opinion that the presidential right to give special pardons should be restricted by the law.
However, the president claimed in the article posted on Blue House Briefing that, “If the presidential right to grant amnesty to prisoners creates political controversy and conflict, revising related laws such as the amnesty act or rewriting the Constitution itself could be one solution.”
Amnesty that nullifies the effects of a judicial decision or the prosecutorial right can easily damage the authority of the judiciary and jeopardize people’s law-abiding spirit. Even if there is a provision that provides the grounds for a pardon in the Constitution, the president, who has the duty to observe the Constitution, must exercise the right pursuant to the intent of the law.
The amnesty right should be exercised for national interest and reconciliation only. It should not be abused for political purposes, nor exercised in the interest of a certain party’s interests or tactics. There should be rational standards for giving amnesty, such as correcting the uniform application of the law, straightening out a misjudgment that cannot be corrected through retrial or reflecting circumstantial changes that take place after a trial.
Because of these reasons, it is necessary to limit the presidential right to give a special pardon that does not require the approval of the National Assembly to a certain extent. Prisoners who have served less than one-third of their prison terms and those convicted of corruption-related crimes, such as accepting bribery and violating the political fund law, should not be eligible for a pardon. And the government should establish an amnesty examination committee and let it decide amnesty cases.
President Roh must be well aware of these principles. When he was a presidential candidate in 2002, he pointed out that the president should refrain from exercising the right to pardon if it would violate the authority of the judiciary and ignore the law-abiding sentiment of the people.
He also emphasized that the amnesty right should be exercised based on strict standards and principles. And at one time he expressed a willingness to consider methods like respecting the opinion of the judiciary when exercising the amnesty right or establishing a neutral amnesty examination committee to investigate an amnesty plan in advance.
However, I have never heard of Roh exercising the amnesty right after hearing the opinion of the chief justice. The amnesty examination committee has never been formed, either. To the contrary, he has used special pardons seven times so far during his term of office to relieve his political comrades and corrupt politicians, despite rampant public opinion against giving them pardons. Isn’t it self-contradictory to say toward the end of his term that the president’s right to pardon should be restricted after he has exercised the right as often as he wanted?
It seems that the president’s suggestion to limit the pardon right is not out of recognition of the problems of the amnesty act, which has not been revised since its enactment in 1958, but with the intention of preventing the next president from exercising the right.
If the president abuses the amnesty right again, the rule of law in this country will go backward. We should not overlook the statement by the World Bank that Korea’s rule of law index worsened in 2006.
*The writer is a lawyer and the chairman of the Seoul Bar Association. Translation by the JoongAng Daily staff.
by Ha Chang-woo
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