ED Lee's legal challenges on hold

Police stand on duty at the Seoul High Court in this March 26 file photo. Yonhap

A Seoul court reduced some of the legal risk for President Lee Jae-myung by indefinitely postponing his trial on charges of violating election law in 2022. The Seoul High Court cited Article 84 of the Constitution, which says "a sitting president is not subject to criminal prosecution while in office" for most crimes except insurrection and treason.

The court's decision can be construed as clarifying the application of Article 84 to cover ongoing indictments or criminal cases of an elected president. To date, there is no legal precedent and some legal scholars believe this exemption for the sitting president should refer only to new indictments or trials.

Reactions to the court's decision were split down party lines. The ruling Democratic Party of Korea (DPK) said the decision was "expected and natural" while the main opposition People Power Party's interim leader cast it as "the court having admitted that it remains attuned to the powers that be." The court's ruling, more importantly, shows the difficulty of balancing the will of the public as reflected in election results and the task of the judiciary branch to seek legal accountability.

The criminal trial on the Public Official Election Law violation could have carried dire consequences for the president, since a conviction resulting in a fine of 1 million won or more results in a five-year ban on seeking public office, and a prison sentence results in a ban of up to 10 years.

This focus on his legal risks — 12 charges spread out across five hearings — had ebbed and flowed during his presidential campaign. After an appellate court cleared him of the charges, the Supreme Court sent it back for review in May, raising uncertainty for the president. The Seoul High Court had initially slated its first hearing for May 15 but then delayed it to June 18, before dismissing it indefinitely Monday.

A court's ruling and decision should be respected. The Supreme Court, when it remanded the case to the lower court in May, did not issue a specific comment regarding the application of Article 84. Instead the National Court Administration under the Supreme Court decided the judges of each court where the president's hearings are being held will have final say on whether to postpone or proceed with the cases in front of them. This may well prompt the courts overseeing the four other cases involving the president to postpone those trials indefinitely as well, possibly until after his single five-year term ends. Also on Tuesday, another court postponed another trial on charges of development corruption and bribery from the president's tenure as mayor of Seongnam in Gyeonggi Province.

Divergent opinions will continue to form around this decision. Some are requesting a constitutional review of this case. But a more realistic application and interpretation may provide Korea the opportunity to restart and rebuild after six months of political crisis and division.

Public sentiment is also divided. According to an in-depth exit poll of 5,190 voters conducted by the three major broadcasters on June 3, 63.9 percent of respondents answered "yes" when asked if the trial should continue after the president is elected. A total of 25.8 percent responded "the trial should be halted" and 10.3 percent responded that they did not know. Among DPK supporters, 42.7 percent said that the trial should continue versus 44.4 percent who said the trial should be halted.

Given that the court's decision allows the president to fully carry out his executive branch duties based on the public mandate given to him in the election, the DPK now must rethink the array of revisions on bills such as the Criminal Procedure Act and the Public Official Election Act. The former, planned to be introduced at the National Assembly's plenary session Thursday, entails an immediate halt to trials once a president is elected. The latter seeks to remove the word "behavior" from the charges a candidate running for public office can be convicted for. Such a unilateral push on the legislative floor, which seems aimed to protect party figures, does not live up to the mission that a democratic legislature must carry out. The president himself has called for unity and social integration; the parties must also prioritize serving the general public, for once.