An unexpected new year's gift fell upon 1,373 prisoners last year. On December 28, 2022, the Ministry of Justice (MOJ) announced a round of special year-end pardons for multiple politicians and former high- ranking government officials. One of the pardoned politicians was former President Lee Myung Bak, who was initially sentenced to 17 years in prison for bribery and embezzlement. Special amnesty proposals are not new within South Korea, but they inevitably become a topic of debate whenever they occur. Its overarching influence on domestic politics makes any amnesty proposal an indicative wind of change for Korean society.

The 2022 year-end special pardons were issued under the authority of President Yoon Seok-yul, involving a number of high-profile individuals whose involvement in politics stretches back nearly three administrations. The most notable figure is former President Lee, who was convicted of accumulating roughly 43.9 billion KRW (Korean Won) worth of funds through bribery and embezzlement. The clemency effectively exempted him from his sentence and the eight billion KRW (Korean Won) fine that he was required to pay, reported the British Broadcasting Corporation (BBC). The pardons also included core members of the impeached ex-President Park Geun-hye administration and ex-Governor of South Gyeongsang Kim Kyung-soo, who was arrested for manipulating public opinion in favor of former President Moon Jae-in. These pardon recipients were sentenced after a long and chaotic court battle over the past decade, so news of their release has naturally provoked severe backlash from their respective opposing forces. Unfortunately, this controversy has been a significant part of Korean politics for quite a while, its roots being traced back decades ago.

Pardons: Why Do They Exist?

The Amnesty Act was established in 1948 as the second-ever law passed by the Constituent National Assembly, making it one of the oldest legislations of South Korea’s government. Despite its rich history, the nature of the law is a controversial one. Professor Cha Jina (School of Law) states that the president’s power to overrule judicial rulings greatly contrasts with South Korea’s principles of nomocracy, or rule of law. “The protocol dates back to the age of monarchies when kings’ orders trumped decisions by any other political instrument,” remarks Professor Cha.

There are two main reasons special amnesty privileges exist under modern democracy. Firstly, amnesty grants can serve as a last-minute check for potential legal errors and save wrongfully convicted individuals. Secondly, amnesties are claimed to be an effective tool at resolving delicate political or diplomatic issues. For instance, a nation may wish to pardon a foreign official or representative instead of pressing charges to avoid unnecessary international conflict. In either scenario, however, amnesties are meant to be exercised in very specific emergency cases.

The Reality of Political Pardons

Sadly, the reality in South Korea is that pardons are blatantly handed out by the thousands, specifically to white- collar criminals of power. Of the nearly 1,400 prisoners released on the 28th, only 24 were not convicted of political or election-related crimes. Professor Chang Young-Soo (School of Law) states that this pattern of presidential clemencies is clearly a misuse of the special amnesty privilege. He points to how other advanced democracies that recognize presidential amnesties exercise that power in the most reserved sense possible. France pardoned on average four to five people per administration, while Germany granted clemency to just four convicts in total. “The United States (U.S.) presidents have pardoned only a couple hundred a year, and even that is considered too much,” commented Professor Chang. “Pardoning thousands to hundreds of thousands is unheard of.”

The scope of South Korea’s clemencies is also a point of concern, as its leniency towards authority figures may provoke agitation among the public. An often-quoted justification for granting amnesties to politicians is its role of uniting the public by holistically selecting people from different ideological groups and pardoning them in a show of good will. The official press release of the MOJ also dictates public unity as their main reason behind the pardons. Politically calculated acts of generosity to evoke public fellowship have existed in the past, such as the clemency granted to North Korean agent Kim Hyon-hui in 1989. But calculating this increased level of “unity” is a difficult process, meaning its justifications rely on a fuzzy and sometimes arbitrary metric.

This ambiguity in national unity is particularly harder to justify when compared to the tension that may arise from the people’s sense of disillusionment and anger as they witness the offenders being released. “When people are continuously exposed to these executive officials and public figures being pardoned for their crimes, even though no concerns were raised over the fairness or legitimacy of the ruling process, they may start to feel that the law is not as fair as they think,” states Professor Cha. South Korea saw four out of their last eight presidents be convicted, sentenced, and pardoned for their crimes. When exceptions become the norm, people’s expectations of the legal system could fade. The biggest threat that political pardons possess to South Korea is their potential to provoke distrust of the government and the democratic system.

Criticisms of the special amnesty protocols have prompted many to suggest new restrictions that block a president’s ability to grant special pardons. However, Professor Chang notes that the law itself is not at fault. The role of the amnesty protocol is a limited but an important one and hindering its range of use is contradictory to the purpose of its existence. Instead, it should be the president’s misuse of power that is scrutinized. “Rather than discussing the justness of the law, we should be assessing the people who abuse it,” remarks Professor Chang. He argues that the fundamental solution to thisrepeated issue of clemency abuse is for people to be vigilant about the actions of the representatives that they have elected. Amnesty grants create ripples that stretch beyond the quarrels of party politics. It is why each one warrants the watch of the public’s eye.