Kim Byung-ki, floor leader of the Democratic Party of Korea, speaks at a supreme council meeting held at the National Assembly in Yeouido, Seoul on the 3rd. Yonhap News

In a public statement at the party's supreme council on the 3rd, Kim Byung-ki, floor leader of the Democratic Party of Korea, argued regarding the controversy over the unconstitutionality of a special tribunal, stating, "There were claims of unconstitutionality during the discussion of a special tribunal for judicial misconduct in 2018, but there was no conclusion. In 2014, during the Sewol ferry disaster, the judiciary itself reviewed the establishment of a special tribunal. If it were unconstitutional, they would not have considered it in the first place."

However, based on official documents confirmed by Hanmiilbo and the judiciary's stance at the time, his remarks, while having a factual basis, tend to oversimplify the context.

In 2018, a bill to establish a special tribunal, proposed by Democratic Party lawmaker Park Ju-min, was debated in the National Assembly. The political sphere began drafting the bill due to a growing concern that the judicial misconduct cases were not appropriately handled by regular courts.

However, the Court Administration and Management Office submitted an official opinion to the Legislation and Judiciary Committee stating, "There is a possibility of unconstitutionality," and Ahn Cheol-sang, then head of the Court Administration and Management Office, also publicly pointed out the possibility of unconstitutionality.

The expression "there was no conclusion" is technically correct in that the Constitutional Court did not make a final ruling. However, it can be seen that the judiciary's clear official stance at the time, raising issues of unconstitutionality, was overlooked.

It is not that there was no discussion of a special tribunal during the 2014 Sewol ferry disaster.

A document titled "Plan for Appropriate Jurisdiction and Tribunal Assignment for Sewol Related Cases," released by the Supreme Court's special investigation team in 2018, contained the phrase "possibility of maximizing external promotional effects by the judiciary focusing its interest and capabilities on the case."

At the time, the Court Administration and Management Office had internally reviewed a proposal to establish a special tribunal headed by Shin Kwang-ryeol, then chief judge of the Incheon District Court.

However, this remained solely an internal review document and did not lead to actual institutionalization. It is possible to criticize Kim's proposal of this as a basis to argue that it was "not unconstitutional, therefore it was reviewed" as an exaggerated interpretation.

Ultimately, Kim Byung-ki's remarks have a factual basis but are strongly characterized by simplification for political rhetoric. In 2018, the judiciary clearly pointed out the potential for unconstitutionality, and in 2014, it only remained at the review stage.

While it may have some persuasive power as a political defense strategy, its limitations are evident in its failure to fully reflect the legal context. This controversy once again highlights the significant gap between politics and law surrounding the establishment of special tribunals.

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