The constitutional issue lies in the structure that puts a special prosecutor in charge of cases involving the president himself
At the heart of the constitutional dispute over the fabricated-prosecution special counsel act is the very approach of 'case-specific special investigation' itself.
A bill passed after breaking a 24-hour filibuster
The so-called 'fabricated-prosecution special counsel act,' aimed at uncovering allegations of fabricated investigations and indictments by the prosecution under the Yoon Suk-yeol government, including cases involving President Lee Jae-myung, passed the National Assembly plenary session on the 6th, driven by the Democratic Party. Although the People Power Party's unlimited debate, or filibuster, lasted some 24 hours, the Democratic Party forced it to an end through a vote and passed the bill. The following day, the 7th, the People Power Party held a large-scale rally in central Seoul to openly express public opposition to the bill.
The gist of the bill is for an independent special counsel to determine whether the prosecution under the Yoon Suk-yeol government fabricated investigations and filed charges against specific individuals. The scope of investigation includes cases related to President Lee Jae-myung's trials. People Power Party floor leader Jeong Jeom-sik argued on the 8th that there is "an intent of political revenge against the investigating prosecutors," citing the inclusion of the case of the West Sea civil servant shooting death. Controversy over the scope of nominations in composing the pool of special counsel candidates is another axis of the dispute over the bill.
The essence of the constitutional debate: the president appointing a special prosecutor for his own cases
The sharpest point of contention surrounding the bill is the structure of the special counsel appointment procedure. Special counsel acts typically involve a process in which the National Assembly recommends a candidate and the president appoints them. The constitutional argument is that the scope of this bill's investigation includes cases in which the appointing authority — the president himself — has a personal stake. This is because if the president's guilt is called into question in the process of uncovering allegations of fabrication by the Yoon government's prosecution, it could directly affect the ongoing trials.
According to Yonhap News, constitutional scholars and the legal community are divided over this structure. The side arguing unconstitutionality sees the fact that the appointing authority and the interested party in the investigation are the same person as a violation of the separation of powers principle. The constitutionality side counters that past special counsel acts have likewise been legislated separately for each case, and that the bill aims to guarantee the right to a fair trial for those targeted by allegedly fabricated indictments.
The suspicion of a 'process toward withdrawing indictments' arises from the same logic. If the special counsel determines that a prosecution was fabricated, a path opens for the prosecution to withdraw its indictment — which critics point out could in effect render the trial itself null and void.
Concerns raised not only across party lines but within the ruling party itself
The debate is not confined to a confrontation between the ruling and opposition parties. Chung Sung-ho, a Democratic Party lawmaker who served as the first justice minister of the Lee Jae-myung government, said shortly after the bill's passage that "more deliberation was needed," noting that proving fabricated prosecutions through a special counsel investigation alone would not be easy. Former justice minister Cho Kuk also said the bill carries constitutional risks. Even within the ruling camp, voices pointing out legal contradictions have followed one after another.
Seo Young-kyo, the Democratic Party chairwoman of the National Assembly's Legislation and Judiciary Committee, rebutted on the 8th that "claims of presidential conflict of interest are nonsense." The Democratic Party emphasized that "prosecutorial power is not the private property of any administration," and that establishing a fair legal standard is the purpose of the bill. In contrast, People Power Party leader Jang Dong-hyuk branded the bill the 'Lee Jae-myung prison-break act' and argued that "impeachment is now the only answer." The People Power Party likens the special counsel to 'the president's personal law firm' and is demanding the bill's repeal.
A request for reconsideration and Constitutional Court review: the bill stands at a crossroads
The bill now faces a gate: after being transferred to the government, whether the president will request its reconsideration. With opposition backlash escalating and protests spreading outside the Assembly, the prevailing observation is that a veto is likely. If a request for reconsideration is made, a revote in the National Assembly will follow; and if the bill passes the plenary again even after the veto, the Constitutional Court's constitutionality review will become the next issue.
The political war of attrition is expected to continue until the Constitutional Court rules on the case-specific special investigation approach itself. If the first special counsel act of a presidency were sent to the Constitutional Court over a conflict-of-interest dispute, the standard for future case-specific special counsel legislation could be redefined — meaning the bill's ripple effects are likely to extend far beyond any individual case.
