Bahk Eun-ji has been with The Korea Times since 2012, building a career across multiple desks. She began at the Business Desk, where she conducted in-depth interviews with key figures in Korea's corporate world. Later, she moved to the Politics & City Desk, focusing on education policy and social affairs. She later served as team leader of the digital content team, leading curation efforts on the newspaper’s homepage and reshaping print stories for social media audiences to enhance digital reach. Now back on the Politics Desk, she covers the National Assembly and the Ministry of National Defense, with a renewed focus on political developments.
New insurrection tribunal faces legitimacy questions as Yoon weighs appeal
The Seoul Central District Court in Seocho District, southern Seoul, is seen in this photo, Tuesday. Yonhap
By Bahk Eun-ji
Debate grows over special court’s limits, judicial independence
The passage of a new law mandating dedicated court panels for insurrection-related crimes has thrust Korea into a complex legal debate, as critics and government officials alike weigh whether the special tribunal violates the fundamental principles of the country’s judiciary.
Under the law, known as the Special Act on Criminal Procedures for Insurrection, Foreign Aggression and Rebellion Crimes, at least two specialized panels must be established at the Seoul Central District Court and the Seoul High Court to hear cases related to former President Yoon Suk Yeol’s imposition of martial law on Dec. 3, 2024. The legislation was passed despite repeated objections raised during parliamentary deliberations.
Critics note that the Constitution allows only military courts as a special exception, a provision they say the insurrection tribunal may run up against. Article 101 vests judicial power exclusively in courts composed of judges, while permitting military courts as an explicit exception. Opponents contend that creating a tribunal through legislation to hear a specific category of cases amounts to establishing a special court, something not envisioned by the Constitution.
Korea has rarely set up judicial bodies dedicated to particular historical events. Previous examples cited in the debate include tribunals for pro-Japanese collaborators after Korea's liberation from Japanese occupation at the end of World War II, special courts for election-related crimes following the April 19 Revolution in 1960 protesting government corruption, and the Revolutionary Tribunal established after the May 16 military coup in 1961 that placed Gen. Park Chung-hee in power. No comparable body has been created for such a purpose in more than six decades.
Another area of dispute concerns the principle of the separation of powers. Under current judicial practice, decisions on whether to form specialized panels and how to assign judges fall within the authority of the judiciary through internal bodies such as judges’ meetings and case allocation committees.
Critics argue that legislation requiring the establishment of specific tribunals interferes with that authority, even though the final version of the law assigns the composition of the panels to internal judicial bodies.
Opponents say placing a small group of defendants under a separate court structure amounts to applying different rules to the same criminal offenses, raising concerns that it conflicts with the constitutional principle that all citizens are entitled to the same legal standards and a fair trial.
Cha Jin-ah, a constitutional law professor at Korea University School of Law, said judicial independence can be undermined not only by outside forces but also from within the judiciary itself.
“Introducing the tribunal at the appellate level or staffing it through internal recommendations does not remove the constitutional concerns, and creating multiple panels does not turn something unconstitutional into something constitutional,” she said.
The issue has gained prominence as Yoon and former Defense Minister Kim Yong-hyun face insurrection-related charges. Lawyers for the two have stated that they plan to seek a constitutional review of the law establishing the tribunal.
Yoon’s lawyers dismissed the new tribunal as "bespoke judging," arguing that administrative committees cannot mask the fact that judges are being handpicked for the case.
Under Korean law, a court may refer a statute to the Constitutional Court for review if its constitutionality is deemed a prerequisite to adjudicating a case. If such a request is accepted, trial proceedings are suspended until the Constitutional Court issues a ruling.
If proceedings are suspended, detention periods continue to run during the review process. In cases where statutory detention limits expire, defendants may be released before a final judgment is reached.
The ruling Democratic Party of Korea has said revisions to the bill removed elements that could undermine judicial independence, including provisions involving external recommendations for judges. The opposition People Power Party has maintained that the core constitutional issues remain unresolved.
As the law takes effect, the courts must now determine how to form the insurrection tribunal amid ongoing constitutional challenges.