As a so-called “Lee Myung-bak independent counsel bill” was approved by the National Assembly on December 17, attention is focused on the possibility of whether Lee, the presidential candidate of the Grand National Party, will be summoned and indicted. If this happens after he is elected, he will become the first president-elect in the nation to be questioned by law enforcement authorities.

Under the election laws, a presidential candidate is immune from detention for questioning in most cases, except for those in which a crime punishable by the death penalty, life imprisonment or a jail term of more than seven years has been committed. In addition, when a candidate is elected and takes office, the president cannot be prosecuted during his or her term, except for in cases of mutiny or foreign crisis, under Clause 84 of the Constitution. However, there is no law guaranteeing the status of a president-elect, and many legal experts say that a president-elect can be summoned by an independent prosecutor.

“Clause 84 of the Constitution is aimed at guaranteeing the smooth implementation of the president’s work. An investigation into a president-elect is possible because there is no law about the president-elect,” an official of the prosecution said.

Lim Ji-bong, a law professor at Sogang University, said, “Under the Constitution, there is no article granting the status of president to a president-elect. The authority and status of the state’s organization must be strictly interpreted.”

However, another official of the prosecution said, “Though it will create a controversy, there are no investigations without the presupposition of an indictment.”

An independent counsel is expected to start investigating Lee in as late as mid-January, given procedural matters such as the bill’s enactment, the appointment of an independent counsel and the preparatory period for the investigation.

The independent counsel’s investigation is limited to 40 days, and is aimed at completing the first stage of the investigation before February 25, when the new president is to take office. The United New Democratic Party shortened the investigation period when it submitted the independent counsel bill, so that it will possible to determine whether Lee, if elected, should be indicted before the inauguration takes place, because he would be immune from indictment upon taking office.

However, if Lee is elected, his indictment will be suspended for the duration of his term, even if he is indicted before his inauguration. The statue of limitations will be applicable after his five-year term is over, and trials will also be suspended.

A Supreme Court justice said, “If we were to interpret Clause 84 of the Constitution broadly, it would include both indictment and trials because the president wouldn’t be able to perform his or her duties while on trial. If a president-elect were to be indicted, though it would cause political controversy, it would have little effect on the president [once in office],” he said.

Han Sang-hee, a law professor at Konkuk University, said, “Though an investigation can’t be blocked, it is desirable for an independent prosecutor not to indict before the inauguration, because it could serve as a bad example. If an indictment is necessary, it would be more desirable to deliver the indictment after the president steps down,” Han said. “After five years, the prosecution should be named to indict to prevent controversy,” he said.

Please direct questions or comments to [englishhani@hani.co.kr]