[Law & Story] Principles That Must Be Upheld in the Investigation of Yoon

Although Martial Law Authority Was Misused,
Cooperation Among Investigative Agencies and Delay in Special Prosecutor Are Regrettable
The Disappearance of the Presumption of Innocence Is Deeply Concerning

Seokjin Choi, Legal Affairs Reporter

It is unfortunate that the people have to witness a president undergoing impeachment trials and investigations simultaneously, less than a decade after former President Park Geun-hye was impeached and sentenced to a heavy punishment due to the 2016 ‘Choi Soon-sil political scandal.’ Above all, swift resolution of this national crisis is urgently needed.

It is an undeniable fact that President Yoon Seok-yeol’s declaration of emergency martial law on December 3 did not meet constitutional requirements, and that the decree prohibiting the National Assembly’s political activities?despite its right to demand the lifting of martial law?violates both the Constitution and the Martial Law Act.

While the president’s improper exercise of martial law declaration authority does not immediately constitute the crime of rebellion, according to consistent testimonies from multiple related parties regarding President Yoon’s instructions at the time of the declaration, the prevailing view acknowledges at least the intent of ‘disturbing the national order.’

Despite this situation, President Yoon’s complete refusal to respond to summonses from investigative agencies and his rejection of court-issued warrant executions represent a serious erosion of the rule of law and are unacceptable.

However, there are a few regrettable points in the so-called rebellion investigation process that should be noted.

First, there was a failure to conduct cooperative investigations among the police, prosecution, and the High-ranking Officials’ Crime Investigation Office (Gongsa-cheo). The three investigative agencies competed chaotically to assert their presence, resulting in situations where the police conducted searches and seizures on the same suspect, while the prosecution handled arrests.

Although Gongsa-cheo took over President Yoon’s case through a transfer request, it is unlikely that Gongsa-cheo, which has not arrested a single suspect in its three years since establishment, has the capacity to investigate such a major case. Since only the prosecution can indict under relevant laws, Gongsa-cheo’s insistence on directly investigating President Yoon?while leaving warrant execution to the police?appears to be an attempt to use this investigation as an opportunity to elevate the status of its diminished organization.

This is evident from Gongsa-cheo Chief Oh Dong-woon’s announcement of plans to request and execute an arrest warrant, the filing of warrants outside their jurisdiction, and the careless preparation for warrant execution. Ultimately, this only provided President Yoon’s side with grounds to claim ‘illegal investigations by an agency without investigative authority’ and ‘illegal arrest warrants.’

The Democratic Party also bears responsibility for delaying the investigation by failing to promptly appoint a special prosecutor due to political calculations. After failing to reapprove the special prosecutor on the 8th, the Democratic Party only the next day proposed the ‘Third-party Recommendation Special Prosecutor Act,’ which allows the Chief Justice of the Supreme Court to recommend special prosecutor candidates and removes the opposition party’s veto power.

The most concerning issue is the disappearance of the constitutional ‘presumption of innocence.’ The presumption of innocence is a fundamental principle of criminal procedure and a core element of the rule of law and democracy, stating that suspects or defendants must not be treated as guilty before a final guilty verdict and that any disadvantages imposed must be minimal and proportionate.

This principle explains how former Justice Minister Cho Kuk, who was sentenced to imprisonment in the second trial, could run for and be elected as a member of the National Assembly, and how Democratic Party leader Lee Jae-myung?who has already been sentenced to loss of office for violating the Public Official Election Act in the first trial and is facing trials on more than ten other charges?can still dream of running for president and becoming the nation’s leader.

In this regard, the statement by Jeong Cheong-rae, chairman of the National Assembly’s Legislation and Judiciary Committee and representative of the parliamentary impeachment prosecution team, that “Yoon Seok-yeol will be sentenced to death for rebellion by the court” is even shameful. Investigations into President Yoon must also proceed swiftly and strictly within the bounds of the law.