Lawmaker Na Kyung-won protests the promotion of a bill to establish a 'court exclusively for sedition'. Yonhap News

The Supreme Court has once again expressed concerns about the constitutionality of the bill to establish a 'court exclusively for sedition' (special court for sedition) being promoted by the Democratic Party of Korea, stating that "parliamentary legislative power also has constitutional limits."

According to Shin Dong-wook, a lawmaker from the People Power Party on the National Assembly's Legislation and Judiciary Committee, the Supreme Court's Office of Court Administration recently submitted its review opinion to the National Assembly, containing these remarks, regarding the bill for a court exclusively for sedition, which was primarily proposed by Lee Seong-yoon, a lawmaker from the Democratic Party.

The National Assembly's Legislation and Judiciary Committee passed a "Special Act on the Establishment of a Dedicated Court for the December 3rd Martial Law and Related Matters of Yoon Suk-yeol, and Protection of Whistleblowers" in its first subcommittee on legislative review yesterday, incorporating some of the provisions of the bill, driven by the Democratic Party.

In its opinion, the Office of Court Administration emphasized that "even though the National Assembly has legislative power regarding the qualifications of judges and the organization of courts, it cannot be left to the discretion of the legislator without any limits," and "there are constitutional limits that must not violate the fundamental principles of the Constitution, such as the independence of the judiciary, or infringe upon the essential content of fundamental rights such as the right to petition for a trial, the right to equality, and the freedom of the person."

It added that "it is desirable for the National Assembly to exercise its legislative power while respecting the functions and authority of the courts prescribed by the Constitution, and the separation of powers and independence of the judiciary, which are fundamental principles of the Constitution."

Although the bill proposed by Park Chan-dae initially used the term 'special court,' the Democratic Party revised the terminology to 'dedicated court,' seemingly mindful of constitutional controversy. The Office of Court Administration stated that "regardless of formal differences in naming, such as 'court handling arrest warrants' and 'dedicated court' in this bill (Lee Seong-yoon's bill) versus 'special court handling arrest warrants' and 'special court' in the special bill (Park Chan-dae's bill), their essence and substance are the same."

Furthermore, in response to some claims that a court exclusively for sedition would not be problematic as it is similar to specialized courts already established and operated by existing courts for cases such as corruption, elections, and economics, the Office of Court Administration countered that "a dedicated court is fundamentally different from a specialized court."

The Office of Court Administration elaborated that "specialized courts are established according to pre-determined general and abstract standards for the division of duties, and a structure where the randomness and non-arbitrariness of case allocation are enforced," and "a dedicated court is established to judge only cases that are specified by the so-called 'Three Major State Affairs Corruption Special Prosecutor Act,' and it is a structure where judges who will judge specific individual cases are arbitrarily determined after the fact."

According to the bill passed by the subcommittee yesterday, the recommendation committee for the court exclusively for sedition will consist of a total of nine members: three recommended by the President of the Constitutional Court, three by the Minister of Justice, and three by the Conference of Judges.

Kim Yong-min, the head of the first subcommittee on legislative review, emphasized that political involvement, such as participation from the National Assembly and political parties, which has been a point of contention regarding the composition of the recommendation committee, has been excluded.

However, the Office of Court Administration pointed out in its opinion that "the involvement of external organizations, whether it be the National Assembly, the Ministry of Justice, or the Korean Bar Association, in the appointment of judges who handle arrest warrants and dedicated courts, is itself a concern that could be seen as infringing upon the external independence of the judiciary," and "even if the National Assembly is replaced by the Ministry of Justice, the essence of the problem remains the same."

Yonhap News