Questions arise over constitutionality, conflict of interest in special counsel probe design

A special counsel law passed by the National Assembly on Friday is drawing questions over conflicts of interest and whether its investigative powers are consistent with the government’s prosecution reforms.

The legislation calls for an investigation into allegations that prosecutors and other state agencies fabricated evidence or brought politically motivated charges under former President Yoon Suk Yeol.

Its 12 areas of investigation include cases involving President Lee Jae Myung, including alleged election law violations, involvement in development scandals and illicit money transfers to North Korea.

An earlier version of the bill, introduced by the ruling Democratic Party of Korea (DPK) in April, would have allowed the special counsel to take over pending prosecutions and decide whether to maintain them, prompting opposition accusations that it was designed to clear Lee of criminal charges.

The DPK came up with a revised version after Lee asked lawmakers in September to remove the provision.

But the appointment process remains contentious. Three parties — the DPK, the main opposition People Power Party and the minor liberal Rebuilding Korea Party — can nominate a candidate, with Lee making the final choice.

Critics say the president would thus select the person who can find possible misconduct in prosecutions involving him. Although the investigation would not directly annul indictments against Lee, even if prosecutorial misconduct is found, its findings could affect his pending cases that will resume after his term ends.

The DPK counters that a special counsel operates independently once appointed and is not subject to presidential direction.

Another dispute centers on prosecutors’ investigative authority.

Revised criminal procedure rules that took effect in October removed ordinary prosecutors’ direct investigative powers. Yet Article 6 of the special counsel law’s supplementary provisions applies the previous rules to the special counsel and dispatched prosecutors.

“Applying an old law that is no longer in force to a special counsel investigation raises constitutional and legal problems,” Cho Kuk, head of the Rebuilding Korea Party’s policy institute, wrote Friday on Facebook.

“Even if prosecutors with investigative experience are needed to examine fabricated investigations, prosecutors are no longer investigative authorities,” he wrote, warning that a court challenge over constitutionality could halt proceedings.

DPK Rep. Kim Han-kyu rejected the criticism. “When the Criminal Procedure Act was revised, its supplementary provisions already stipulated that special counsels and dispatched prosecutors retain investigative powers under the previous law,” he told reporters. “This bill merely repeats that provision, so there is nothing unconstitutional or unlawful about it.”