Prosecutor Park Sang-yong [Photo=Yonhap News]

Prosecutor Park Sang-yong has publicly requested that President Lee Jae-myung exercise his veto power over the special prosecutor bill.

Park Sang-yong, a deputy chief prosecutor at the Incheon District Prosecutors' Office (38th graduating class of the Judicial Research and Training Institute), who investigated and prosecuted cases involving President Lee Jae-myung, has announced a phased approach to the ruling party's push for a 'special prosecutor law for the withdrawal of prosecution'.

On the 3rd, Prosecutor Park posted on Facebook, stating, "Mr. President, this special prosecutor bill is clearly unconstitutional. You must exercise your veto power to prevent the destruction of the constitution." He conveyed that all cases subject to investigation by this special prosecutor bill are related to the President.

He argued, "It is undoubtedly unconstitutional for a special prosecutor to take cases currently on trial involving the President away from the prosecution and entrust them with maintaining prosecutions (including withdrawal of prosecution)." He explained, "This is because the defendants or potential defendants in these special prosecutor cases are the President himself."

In other words, this special prosecutor law would allow the defendant to appoint the prosecutor who is their adversary in court.

Furthermore, Prosecutor Park stated unequivocally, "This is self-evidently unconstitutional, as it completely undermines the fundamental principles of our constitution: ➀ the rule of law, ➁ the principle of separation of powers, and ➂ the principle of equality."

He also pointed out, "How can such a thing happen in the Republic of Korea, which declares itself a 'democratic republic' in Article 1, Clause 1 of the Constitution?" He warned that if this special prosecutor bill is enacted, promulgated, and implemented, Korea would become an object of concern, worry, ridicule, and pity among democratic nations worldwide.

Meanwhile, Prosecutor Park Sang-yong plans to first request the President to exercise his veto power, and if this is not accepted, he intends to strongly urge the Prosecutor General's acting chief or the Minister of Justice to file a petition for a judgment on the conflict of authority.

The following is the full text of Prosecutor Park Sang-yong's Facebook post.

Mr. President, this special prosecutor bill is clearly unconstitutional. You must exercise your veto power to prevent the destruction of the constitution.

All cases subject to investigation by this special prosecutor bill are related to the President. While there may be debates about appropriateness, it could be considered constitutional for a special prosecutor appointed by the President to investigate alleged wrongdoings by the President during the investigation process.

However, it is undoubtedly unconstitutional for a special prosecutor, as in this bill, to take cases currently on trial involving the President away from the prosecution and entrust them with maintaining prosecutions (including withdrawal of prosecution).

This is because the defendants or potential defendants in these special prosecutor cases are the President himself. This special prosecutor law allows the defendant to appoint the prosecutor who is their adversary in court.

This is self-evidently unconstitutional, as it completely undermines the fundamental principles of our constitution: ➀ the rule of law, ➁ the principle of separation of powers, and ➂ the principle of equality.

1) Violation of the Rule of Law

In a country with a constitution that declares it a nation of the rule of law, a law allowing the defendant to appoint a prosecutor is impossible. In a rule-of-law country, no one can become a judge in their own case. However, appointing a prosecutor with the power to withdraw prosecution grants even greater authority than that of a judge.

2) Violation of the Principle of Separation of Powers 

In a country with a constitution that establishes the separation of powers, it is not possible for the National Assembly to create a law that abolishes a trial already underway against the head of the executive branch. This is because the legislative power combines with the executive power to replace judicial power. Without the unification of legislative, executive, and judicial powers, separation of powers cannot exist, and citizens' fundamental rights cannot be protected from power. This special prosecutor is born from the National Assembly, appointed by the executive branch, and abolishes trials. This is a clear violation of the principle of separation of powers.

3) Violation of the Principle of Equality 

In the Republic of Korea, where the constitution declares all citizens to be equal, it cannot be said that the President and ordinary citizens are equal if only the President, as a defendant, can appoint the prosecutor to handle his or her own criminal trial. This grants the President a privilege akin to 'extraterritoriality,' where our criminal justice system is not applied. This is because no ordinary citizen can exercise the privilege of appointing a prosecutor to handle their case and receive a trial.

As you are aware, Mr. President, under this special prosecutor bill, the special prosecutor can direct the prosecutor in a case already on trial, and can appoint a lawyer as a prosecutor to maintain the prosecution. It is possible to be acquitted due to a lack of evidence during the trial, or to request an acquittal, or to withdraw the prosecution in the first instance, withdraw the appeal in the second instance, and withdraw the appeal to the Supreme Court in the third instance.

Where on earth is it possible for the defendant to appoint a prosecutor, and that prosecutor to direct other prosecutors, change prosecutors, withdraw prosecutions, and so on?

If one side in a soccer match teams up with the other side, it's called match-fixing. If a batter in baseball appoints the pitcher and tells them to throw the ball as the batter desires, that is also match-fixing. If this is done openly by law, will it be considered a legitimate soccer or baseball game? Even neighborhood children don't play games like this.

Setting everything else aside, a criminal trial where the defendant and the prosecutor appointed by the defendant are the parties involved is, in name only, not a trial in substance.

A trial is where the defendant and the prosecutor confront each other to uncover the truth, but under the special prosecutor law, the defendant and the prosecutor become one side. It only appears to be a trial, but it is not. We call such things that are similar but fundamentally different 'pseudo' (似而非).

The "adversarial system," "trial-centered system" proclaimed by the courts, the prosecutor's "burden of proof," and "duty of objectivity" all become meaningless. The courtroom simply becomes a stage for a pre-arranged show. The mere thought of such a thing happening in our courtrooms is horrific to me.

Yet, the National Assembly of the Republic of Korea is attempting to do this now. If there is a manipulated indictment, won't the court naturally acquit them? Moreover, the President will appoint 12 Supreme Court justices in the future. What are they so afraid of that they must take away and abolish trials?

Laws like this special prosecutor bill have never even been attempted in history in any normal democratic nation since the French Revolution of 1789. Can such a thing happen in the Republic of Korea, which declares itself a "democratic republic" in Article 1, Clause 1 of the Constitution? If this special prosecutor bill is enacted, promulgated, and implemented, Korea will become an object of concern, worry, ridicule, and pity among democratic nations worldwide. Why must we, the Republic of Korea and its citizens, suffer such a fate?

Currently, the only person who can prevent all of this, and the person with the greatest obligation to do so, is the President.

The President is the guardian of the Constitution. Therefore, Article 69 of the Constitution requires the President to take an oath to defend the Constitution. To promulgate this special prosecutor bill, which completely destroys constitutional principles, is not merely to permit and condone the National Assembly's destruction of the Constitution, but to complete that destruction.

This would be a betrayal of the President's duty as guardian of the Constitution under Article 69, and an active act of destroying the Constitution. Did you not condemn those who destroyed the Constitution, while abandoning your mission as its guardian? And did you not express pride in the people who prevented it, calling it a "revolution of light"?

Your failure to exercise your veto power over this special prosecutor bill and instead promulgate it would be an act of "committing constitutional destruction" yourself, a "dark backlash" of utter darkness.

Mr. President! As a public servant of the Republic of Korea, I earnestly implore you, the Head of State, with utmost sincerity. Exercising your veto power over this special prosecutor bill is not an option or a matter for deliberation for you, who has a duty to uphold the Constitution. It is simply a mandatory act. There is no other way.

A resolute exercise of your veto power, without hesitation or wavering, is the only path to saving this nation, the Constitution, and yourself, Mr. President. Please, I beseech you, consider this with mercy.