Constitutional Court to Deliver Verdict This Week on 'Kumsu Wanbak' Law Jurisdiction Dispute Case... Ruling on 23rd

Constitutional Court Grand Bench.
[Photo by Constitutional Court]

The Constitutional Court will reach a decision this week on two cases requesting a dispute over authority related to the National Assembly's approval process of the amended Prosecutors' Office Act and the amended Criminal Procedure Act, commonly referred to as the 'complete removal of prosecution investigation rights' (Geomsu Wanbak).

The Constitutional Court announced on the 20th that it will deliver rulings on the two authority dispute cases concerning the Geomsu Wanbak law on the 23rd.

Earlier, lawmakers from the Democratic Party of Korea proposed amendments to the Prosecutors' Office Act on April 15 last year, just before former President Moon Jae-in's term ended, which reduced the scope of crimes prosecutors could initiate investigations on from six to two categories, including corruption and economic crimes. They also proposed amendments to the Criminal Procedure Act that included provisions such as prohibiting separate investigations by prosecutors, narrowing the scope of supplementary investigations on cases transferred from the police, and removing the complainant's right to object to the police's decision not to prosecute. These bills were passed in the plenary sessions on April 30 and May 3 of the same year, respectively.

In response, the People Power Party and the Ministry of Justice each filed authority dispute petitions with the Constitutional Court, which has been reviewing the two cases separately without consolidation.

People Power Party lawmakers Yoo Sang-beom and Jeon Ju-hye filed an authority dispute petition with the Constitutional Court on April 29 last year against the Chairperson of the National Assembly's Legislation and Judiciary Committee, claiming that during the approval process of the amendments, the Democratic Party neutralized the agenda adjustment committee through the 'disguised party withdrawal' of lawmaker Min Hyung-bae and undermined the plenary session's unlimited debate (filibuster) by splitting the session, thereby infringing on the rights of People Power Party lawmakers, who were the opposition at the time, to deliberate and vote.

They sought confirmation that the following acts infringed on their constitutionally and legally granted rights to deliberate and vote on legislation and requested that these acts be declared null and void: ▲the Chairperson of the Legislation and Judiciary Committee submitting the amended Prosecutors' Office Act, presented as a compromise bill on April 27, 2022, as a committee-reviewed bill and declaring its passage; ▲the Chairperson of the Legislation and Judiciary Committee submitting the amended Criminal Procedure Act, also presented as a compromise bill on the same day, as a committee-reviewed bill and declaring its passage; and ▲the Speaker of the National Assembly submitting the alternative bills of the amended Prosecutors' Office Act and the amended Criminal Procedure Act to the plenary session on the same day.

On June 27 last year, six prosecutors, including Minister of Justice Han Dong-hoon, Ministry of Justice Legal Affairs Director Kim Seok-woo, and Deputy Chief of the Supreme Prosecutors' Office Trial and Prosecution Department Kim Seon-hwa, filed an authority dispute petition with the Constitutional Court against the National Assembly. They argued that the amended Prosecutors' Office Act infringed on the essential parts of prosecutors' investigative and prosecutorial rights, violated the constitutional principles of majority rule and due process in the National Assembly's approval process, and undermined the purpose of the multi-party system.

Minister Han and others sought confirmation that the National Assembly's acts of approving the revised alternative bills of the Prosecutors' Office Act on April 30, 2022, and the Criminal Procedure Act on May 3, 2022, and sending them to the government, infringed on the prosecutors' investigative and prosecutorial rights granted by the Constitution and laws, as well as those overseen by the Minister of Justice, and that these acts were null and void.

Typically, the Constitutional Court delivers rulings on the last Thursday of each month, but considering that Justice Lee Seon-ae is retiring on the 28th, the ruling date was moved up by one week.

Previously, in the 1997 case involving the 'rush passage' of the Labor Law and the National Security Planning Agency Act, the Constitutional Court recognized that the Deputy Speaker of the National Assembly, acting on behalf of the Speaker, infringed on the opposition lawmakers' rights to deliberate and vote by declaring the passage of amended bills in a rushed manner. However, the Court ruled that the passage declaration was not invalid because it did not clearly violate the Constitution.

This case primarily concerns whether procedural defects during the Democratic Party's push to pass the Geomsu Wanbak law infringed on the rights of People Power Party lawmakers and prosecutors, who were the opposition at the time. However, even if the Constitutional Court acknowledges some infringement of rights, it does not necessarily mean that the passage declaration will be deemed invalid.

If the Court rules the passage declaration of the amended laws invalid, those laws would naturally lose their effect. Conversely, if the passage declaration is upheld, attention will focus on whether the Court will proceed to rule on the constitutionality of the amended laws themselves.

There is academic debate on whether normative control over the constitutionality of related laws is possible in authority dispute cases, but the majority view is that it is generally possible. However, since there is no precedent, opinions have differed on how many justices are required to declare a law unconstitutional due to procedural defects infringing on the petitioners' rights in such cases.

Unlike the Constitutional Court Act's provision that requires six justices for decisions on the unconstitutionality of laws, impeachment rulings, dissolution of political parties, or acceptance of constitutional complaints, authority dispute rulings do not have such special quorum requirements and apply the general quorum of a majority of justices.

Article 23, Paragraph 2 of the Constitutional Court Act states, "The court shall decide on a case by the majority vote of the justices who participated in the final hearing," setting the general quorum as a majority of justices.

The same paragraph's proviso states, "However, in any of the following cases, the decision shall require the approval of six or more justices," including ▲decisions on the unconstitutionality of laws, impeachment rulings, dissolution of political parties, or acceptance of constitutional complaints (Item 1), and ▲cases where the Court changes its previous interpretation or application of the Constitution or laws.

Therefore, if the Constitutional Court judges whether the rights of People Power Party lawmakers, the Minister of Justice, and prosecutors were infringed while also ruling on the constitutionality of the amended Prosecutors' Office Act and Criminal Procedure Act, it may be the first time the Court decides whether five or six justices are needed for an unconstitutional ruling.

Meanwhile, the Constitutional Court is also reviewing an authority dispute case filed by the Democratic Party concerning the so-called 'Geomsu Wonbok' enforcement decree, which allows prosecutors to initiate investigations into crimes such as abuse of authority, election-related crimes, organized crime, and drug trafficking, contrary to the law's intent to reduce prosecutors' investigative rights. However, this case was excluded from the current ruling schedule.