Once again during his presidential term, Lee Myung-bak has used the presidential pardon power, and once again during his presidential term the pardon power has been misused. Although the Blue House asserts such uses have been in strict accordance with law or in the pursuit of the national interest, the truth is that the use of this power to pardon family members, close confidants, or high-ranking chaebol members disregards both the spirit of the power and the original intent behind the power. Even more unfortunate is that these pardons merely serve to solidify the perception of endemic corruption in modern South Korea.

Although the origins of the presidential pardon power date back to ancient Greece and Rome, the use of the pardon power in democracies has always been controversial. The idea of such a “kingly” power existing in a democratic society was regarded warily when it was introduced into the United States constitution in 1787. Eventually the adoption of the presidential pardon power by the U.S., South Korea and other democracies was based on the ideal that a president needs this power in order to pursue broad concepts of human rights.

In South Korea the power also finds justification in the desire to correct miscarriages of justice and to free the wrongly imprisoned. Thus, pardons should be granted only to individuals who have either fulfilled their debt to society or who have been shown to be deserving. A pardon may also be granted where innocence is undisputed and the cost of a retrial is to be avoided. Most importantly, a president may grant clemency to a death row inmate in order to prevent the violation of the most basic human right to life by the justice system.

However, none of these ideals are a legitimate basis for pardoning high-ranking chaebol members or close confidants who have been convicted of economic and white-collar crimes. These pardons are clearly illegitimate due to the simple fact that in the modern era, cases of wrongful conviction are more easily and properly addressed by appeal rather than by pardon.

Nonetheless, the blame for the misuse of the pardon power should not be laid only at the doorstep of the Blue House. Conceivably the repeated politically motivated investigations of outgoing presidents by the Supreme Prosecutors’ Office are the catalyst prompting the president to issue these controversial pardons.

Recent investigations in the United States suggest that the modern controversial usage of the presidential pardon power there has been in reaction to the modern establishment of special prosecutors to investigate high-level government officials suspected of wrongdoing. Beginning with President Nixon and extending through to the controversial pardons of Marc Rich by President Clinton and Scooter Libby by President Bush, it is thought that such pardons were used to short-circuit the ability of special prosecutors to investigate potential presidential wrongdoing.

Similarly in South Korea the constant pursuit of the outs in the political power game by the Supreme Prosecutors’ Office may be prompting the misuse of the pardon power.

Is it surprising that South Korean presidents grant pardons to close confidants, family members and other individuals who may soon be subject to such prosecutorial scrutiny, when there is such widely perceived corruption in the Supreme Prosecutors’ Office and everyone is aware that promotions to higher ranks within the prosecutorial branch are directly tied to successful investigations and prosecutions of high-ranking government officials?

Further, the repeated instances of bribery and abuses of power by members of the prosecution that are regularly detailed in the pages of the South Korean press serve only to heighten the fears of an outgoing administration. Therefore, it is quite clear to astute observers of South Korean politics that these pardons are merely an attempt to defeat the ability of the special prosecutor to fully investigate an outgoing president. Thus placing the blame for the use of this pardon power solely at the feet of the president disregards the influence of the potential misuse of power by the prosecutorial branch in investigating their political opponents.

Therefore, recent calls for reducing or eliminating the power of the Supreme Prosecutors’ Office to investigate the political outs should be considered a preliminary step before revising the pardon power. When used properly the pardon power can be an important check and balance in a democratic state.

However, considering that the current pardons are opposed by the South Korean public, by the incoming president, by the opposition party and by the judicial and the legislative branches, the intransigence of the president is astounding. Over 200 years ago in discussing the presidential pardon power in the United States, Alexander Hamilton proposed that although there was a need for such a power, its misuse should be limited by the power of the legislature to impeach a president who misuses such power.

Perhaps the National Assembly should consider such a course if South Korean presidents continue to ignore good policy, the international rule of law and the will of the entire country in pursuing pardons for their cronies.

By Daniel Fiedler

Daniel Fiedler has been a professor of law in South Korea since 2006 and a licensed attorney in California since 2000 and Arizona since 1998. ― Ed.