Legal scholars specialising in South Korea’s constitution have refuted President Yoon Suk Yeol’s claim that it was unconstitutional for parliament to appoint a special prosecutor to probe his wife over allegations including stock manipulation. Members of the opposition-led legislature were working within the powers granted to them by law, two scholars separately told AFP.
Parliament appointing a special prosecutor “does not violate the separation of powers,” Kim Hae-won, a constitutional law professor at Pusan National University Law School, told AFP (archived link).
“Theoretically I think it’s as clear as one plus one equals two,” Kim said.
President Yoon earlier slammed a bill backed by the opposition Democratic Party (DP) which sought to name a special prosecutor to probe the country’s first lady Kim Keon Hee over allegations of stock manipulation and meddling in party and state affairs.
During a press conference on November 7, 2024, Yoon defended his wife and said the power to initiate investigations and assign prosecutors “are inherent functions of the executive branch.”
“There is no country in the world where the decision to conduct a special prosecutor investigation is made by the legislature,” he said. “This clearly violates the separation of powers in liberal democracies.”
He went on to say it ran “counter to the constitution” to appoint a special prosecutor opposed by the president and the ruling party.
Separation of powers
Law professor Kim told AFP: “Our constitution does not prohibit establishing independent administrative agencies outside the president’s purview.”
He added no branches of the government “monopolise their respective powers entirely”.
“If we follow the president’s reasoning, then even the Corruption Investigation Office for High-ranking Officials (CIO) would be unconstitutional,” Kim said referring to an independent anti-graft agency that he said has executive functions.
Kim also said the legality of special prosecutors has been consistently upheld.
Such prosecutors are nominated by the National Assembly and appointed by the president to investigate cases seen to be vulnerable to political interference (archived link).
The Constitutional Court in Seoul ruled in 2019 that whether to conduct a special prosecutor investigation for a particular case is a “matter for the National Assembly to decide” (archived link).
Son In-hyuk, a constitutional law professor at Yonsei University Law School in Seoul, said the court arrived at the verdict at the time “specifically because the special prosecutor system is intended for investigating contentious cases” involving conflicts of interest (archived link).
Bipartisan consensus
Both experts also refuted Yoon’s remarks that it was unconstitutional for parliament to appoint a special prosecutor who is “opposed by the president and the ruling party”.
Kim said the constitution requires a majority vote for decisions made in the legislature with provisions for specific majorities if needed.
“Legally, what matters isn’t whether the opposing parties reached an agreement but whether the law was enacted properly according to the procedures set out in the constitution,” he said.
He further dismissed the claim as lacking merit. “Let’s say there was only one lawmaker from the ruling party sitting in the legislature, would they still argue the law should be rejected simply because that one person opposes it?”
This was also upheld in the Constitutional Court ruling in 2019, which deemed it “reasonable” and “legitimate” to exclude the ruling party from the candidate nomination process.
Son agreed bipartisan consensus is legally irrelevant. “I find it unconvincing to argue the constitutionality of a matter based on whether such an agreement exists,” he said.
Multiple news reports showed special prosecutor investigations previously proceeded without bipartisan agreement including a 2003 probe into allegations of South Korea’s spy agency paying North Korea for a summit meeting and a 2012 probe involving then President Lee Myung-bak’s son (archived links here, here, here and here).
Special prosecutor
Following his remarks, Yoon’s critics pointed out he played key roles in high-profile special counsel probes as a prosecutor, including in the corruption scandal that brought down his predecessor Park Geun-hye (archived link).
Multiple social media posts — including here, here and here on X — also claimed “special prosecutor investigations are unconstitutional” and attributed the message to the president.
Yoon has been stuck with low approval ratings for months, amid allegations that he granted a personal favour to a self-proclaimed “power broker” that helped the president in his election victory (archived link).
His wife Kim had been under scrutiny for her alleged role in a stock manipulation scheme.
South Korean media reported that prosecutors dropped charges against Kim after deciding she was not aware that several of her bank accounts were used in a pump-and-dump scheme involving Deutsch Motors — a dealer for BMW cars in South Korea — between 2009 and 2012 (archived link).
However, opposition lawmakers continued to pursue a bill to look into her alleged role in the scheme, along with separate allegations that she meddled in the conservative ruling People Power Party’s candidate nomination process in the lead-up to recent elections, including a 2022 by-election, and state affairs (archived link).
South Korea’s National Assembly adopted a bill on November 14, 2024 seeking to appoint a special prosecutor to probe Kim (archived link).
Analysts widely expect President Yoon to veto the bill and send it back for a revote.
