Ruling party push to revise Amnesty Act raises constitutional questions

The ruling Democratic Party of Korea is pushing to revise the Amnesty Act to make it more difficult to pardon those found guilty of insurrection or treason.

While the party says the revision is needed to ensure insurrection is punished, critics say the move lacks justification and that the proposed revision does not address potential issues with the president’s power to grant pardons.

With approval from the Legislative and Judiciary Committee, passing a vote in a plenary session is the last remaining legislative step in the National Assembly. Backing from the Democratic Party, which controls a majority in the legislature, is likely to see it through.

Former President Yoon Suk Yeol was sentenced to life in prison for leading an insurrection by declaring martial law in December 2024.

Following subcommittee approval of the bill Friday, which sorted out elements from dozens of revision bills to the Amnesty Act proposed by Democratic Party lawmakers, Rep. Kim Yong-min of the Democratic Party told reporters that the bill sought to require any presidential pardon for insurrection or treason to secure the support of three-fifths of all lawmakers.

This move would demonstrate "a determination to deny pardons to insurrectionists," Kim added Friday, while playing down concerns that the revision might be deemed unconstitutional because it curbs presidential power.

“If (the purpose of the revision) is to limit the (presidential) pardon power, it should not be done by revising the Amnesty Act, but by revising the process,” Korea University law professor Cha Jin-a said.

“The pardon review committee and the review process should be improved, because the proposed revision does nothing to address the problem of the president’s arbitrary exercise of the power to issue pardons.”

The main opposition People Power Party strongly opposed the move, accusing the Democratic Party of pushing a politically motivated and unconstitutional revision.

People Power Party’s Rep. Na Kyung-won on Friday slammed the Democratic Party, saying that it was attempting to "violate the constitutional principle of the separation of powers.”

Three former presidents — Chun Doo-hwan, Roh Tae-woo and Kim Dae-jung — were found guilty of charges relating to insurrection, though Kim's conviction predated his presidency.

After their presidencies ended, Chun and Roh were found guilty of a range of charges, from planning and executing a coup and insurrection to murder for the purpose of insurrection. Initially, Chun and Roh were respectively sentenced to death and 22 years and six months.

Kim was found guilty of conspiring to stage an insurrection under Chun’s military dictatorship in the 1980s.

Chun and Roh were pardoned by former President Kim Young-sam in December 1997, following consultation with Kim Dae-jung, who was the president-elect at the time. Kim Dae-jung’s guilty verdict was overturned in a retrial in 2004, in which he was acquitted of insurrection charges at the top court 17 years after Roh’s declaration of democratization in 1987.

In this vein, the revision might rule out the possibility that the court handed down the sentence erroneously, or that a presidential pardon might be needed for the good of the nation, an expert noted.

"The argument that the presidential pardon power should be curbed for a specific crime is far from persuasive," Cha said, going on to say that if regulations similar to the proposed revision were in place in the past, the pardoning of Kim Dae-jung, to whom the Democratic Party traces its roots, would not have been possible.

A recent report by the National Assembly Research Service also indicated that the debated revision proposals to the Amnesty Act could be subject to conflicting interpretations.

"There may be conflicting views regarding the constitutionality of bills to restrict pardons for those who committed certain types of crimes or those who held certain social statuses, ... or grant the National Assembly consent ... to issue special pardons," read the report on Feb. 13.