Reps pass laws with fundamental flawsLawmakers are trying to please the public by passing laws that promise grand things but have such fundamental flaws they’re almost guaranteed to end up challenged and probably overturned by the Constitutional Court.
Critics say the practice amounts to professional negligence by the National Assembly.
After the sinking of the Sewol ferry on April 16, 2014, the public was enraged by the government’s botched rescue operation and the cozy ties between maritime authorities and shipping companies, including the family that owned the operator of the ferry. To satisfy an enraged public, the National Assembly sponsored a bill aimed at punishing people who conceal financial gains made through crimes.
It is nicknamed the Yoo Byung-eun law, after the head of the family that controlled the Sewol.
According to the bill, non-family members or a third party can be subject to legal punishment including seizure of property if they are found to have helped business owners gain profits through business malpractices.
Representative Kim Jae-won of the ruling Saenuri Party submitted the bill on May 28, 2014, just five weeks after the tragedy. But the subcommittee of the Legislation and Judiciary Committee showed reservations because the bill could violate the right to ownership of property.
But the floor leaders of the Saenuri Party and the main opposition New Politics Alliance of Democracy (NPAD) struck a deal on Oct. 21, 2014 to pass the bill. It was supported by 224 lawmakers while four opposed it and 17 abstained at a plenary session on Nov. 7, 2014.
Lawmakers, however, were very aware that the law was unlikely to make any difference.
Yoo, who refused to cooperate with a police investigation and eventually went on the lam, was found dead under unexplained circumstances in July. Although the law was named after him, confiscating the assets of Yoo and other related people became impossible because there wasn’t any conviction by a court, a pre-requisite in the law for forcible seizures.
“We approved the bill, although we were all aware that it will actually have no effect,” said Representative Lee Sang-min of the NPAD, chairman of the National Assembly’s Legislation and Judiciary Committee. “It was a deception to molify an angry public.”
A transcript of the lawmakers’ deliberations on the bill before its passage at the plenary session supports the view that lawmakers were staging a bit of political theater.
“The Yoo Byung-eun Law is useless [because Yoo died]. The Justice Ministry pushed it unreasonably,” Representative Jeon Hae-cheol of the NPAD was quoted as saying in a subcommittee of the Legislation and Judiciary Committee on Nov. 6, 2014.
“We could not have known that he would die,” said Saenuri Representative Hong Il-pyo, head of the subcommittee.
“It is particularly impossible to apply this law after Yoo is dead,” Jeon said.
In an interview with the JoongAng Ilbo, Representative Hong admitted to a fundamental problem with the law.
“The law was created based on a deal between the floor leaders after the Sewol’s sinking,” said Hong. “I think such an agreement was just wrong.
“Because Yoo died, the law could not be applied to him, so there was no actual gain from creating the law,” he said. “Because it can infringe upon other people’s right to property, it was also a very dangerous bill. But the floor leaders wanted to approve it to bring some closure to the Sewol’s sinking. That was just nonsense.”
At the time, the floor leader of the Saenuri Party was Lee Wan-koo, the current prime minister, and his NPAD counterpart was Park Young-sun.
Admitting that the law was largely driven by the politicians’ attempt to please the public, Hong said he should have stopped it. “It is embarrassing to admit it now that the bill and its passage were problematic,” he said.
“Because President Park Geun-hye stressed the importance of the Yoo Byung-eun Law, it was difficult for the party leadership to oppose it,” said a senior lawmaker of the Saenuri Party. “Not just the Yoo Byung-eun Law, but other laws that are too ideal or intended to punish a specific person almost always invite a constitutionality debate. So I feel uncomfortable whenever deliberating them at the National Assembly.”
Another law, named after former President Chun Doo Hwan, is another example of the lawmakers’ political attempt to please the public without worrying too much about constitutionality.
The Park administration launched a special investigation in May 2013 to seize assets from the disgraced former strongman, who had refused to pay a massive fine for misdeeds under his rule. The National Assembly passed a set of provisions of the Act on Confiscation regarding Crimes Committed by Civil Servants in June.
The new law, nicknamed the Chun Doo Hwan Law, allows the state to confiscate assets not only of the former president but also his family members or associates suspected of colluding with him to hide the fortune he amassed during his authoritarian presidency.
Lawmakers debated its legality in a subcommittee of the Legislation and Judiciary Committee on June 25, 2013.
“Hold on. The bill includes a specific name of a person [Chun Doo Hwan] and even if it is passed, this will eventually be ruled unconstitutional for targeting a specific person,” Representative Park Beom-kye of the NPAD said according to a meeting transcript.
While the vice minister of justice said he would take back the bill, Saenuri Representative Kweon Seong-dong said, “It is targeting him.”
Despite the obvious legal flaw, the National Assembly went ahead and approved the bill two days later.
It took only 18 months for a constitutional challenge. The Seoul High Court filed a petition to the Constitutional Court in January this year, saying it appeared to violate the right to own property.
Analysts say a recent constitutional challenge to a new anti-graft law is another prime example of the trend.
Only days after the so-called Kim Young-ran Law was passed in March, lawmakers vowed to revise it, while a petition challenging its legality was filed at the Constitutional Court.
“Lawmakers are putting populism over the constitution,” said Chang Young-soo, a professor of law at Korea University.
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