Standards Needed in Granting Special Pardon

Many lawyers are calling for revision of relevant laws to tighten up the pardoning standards and procedures. They criticize that President Kim Dae Jung abused his pardoning power last year and manipulated the relevant standards for political purposes.

Especially, the special pardon authorizes the president to nullify the punishments imposed by the judiciary branch. Naturally, it should be deemed "special" and allowed on an exceptional basis. Nonetheless, in violation of the principle of "separation of power," the executive branch of the government, or the president, has abused the pardoning power and wielded it too many times, earning the criticism that the big principle is being abridged.

▽ Abuse of pardoning power = Park Chon-woon, a practicing attorney, accused, "Few citizens consider the past pardons legitimate. Now, people believe that the pardoning system is only for the rich and powerful. The frequent, illegitimate pardoning is destroying the foundations of our society, and ruining the judicial justice and stability."

A judge at the Seoul High Court, an appellate division, said, "Pardons have been granted for political reasons on an arbitrary basis. Thus, the majority of citizens feel empty, and so do the court and the prosecution."

Another attorney, Lim Young-hwa criticized, "It is simply wrong to pardon those `big shots` put behind bars, ignoring the legal standards and the public opinion. The pardoning power is not for the benefits of people close to those in power."

One prosecutor asked back, "If politicians and entrepreneurs should conclude that the pardoning system protects them, why should we prosecute them for their wrongdoing involving political connections?"

Koh Gye-hyun, a senior official of Citizens` Coalition for Economic Justice, criticized, "Abuse of the pardoning power near the end of a president`s term demonstrates to us how weak the determination of the administration is for rooting out the corruption in society."

▽ Damage and countermeasure = The core of the problem lies in that selection of "pardon beneficiaries" is made artificially without any good reasons or consideration of equality.

Near the end of last year, 9 former CEOs of Daewoo affiliates were freed with expungement of their criminal records. They had served the prison terms for their involvement in illegal accounting practice of Daewoo, fraud and other charges. Their Daewoo subordinates, however, were passed over for pardon, even though they were indicted and found guilty on the same charges as their higher-ups.

One lawyer said, "The higher-ups got free, and their subordinates who just followed the orders still remain behind bars. It`s simply absurd."

In response, lawyers and legal scholars, along with some politicians are calling for introduction of countermeasures to rein in the rampant use of the pardoning power through such as establishment of a pardoning commission.

Grand National Party announced yesterday, "We are considering various options to revise the Pardon Act. One option has it that, without serving one third of the prison term, a person shall not be pardoned. We may also set up a pardoning commission consisting of members recommended by President, Congress and Chief Justice."

Some legal experts, however, worry that these systematic devices, if made into law, might deprive pardoning of its exceptional nature, rendering it as one of those ordinary executive actions.

▽ Examples of foreign countries = The Federal Constitutional Court of Germany interprets the scope of pardoning strictly and justifies it only where exercise thereof is to be justified by good causes arising out of changes of general and/or individual circumstances, or out of the need to modify the strictness and inflexibility of law or error that has occurred during prosecution. In any circumstances, the court holds, the pardoning power shall be exercised in such a way not to abridge the legal equality and stability.

The Constitution of Finland provides, "President shall exercise the pardoning power under exceptional circumstances after consulting the Supreme Court." In Denmark, the law prohibits pardoning of a minister, and, in Norway, a person indicted by the Lower House shall be not granted pardon.

In 2001, right before leaving White House, former President Bill Clinton pardoned Mark Rich in return for illegal political donations. Rich was, at the time of pardoning, was indicted on tax evasion charge and remained at large. After his term, Mr. Clinton was investigated by the federal prosecutors.

Myoung-Gun Lee Sang-Rok Lee gun43@donga.com myzodan@donga.com