South Korea – Criminal Trials, Subsequent Amnesty

國

立 政 治 大 學

‧

N a

tio na

l C h engchi U ni ve rs it y

32

KMT method of prosecuting hanjian “offered a means to resolve the upturned former imperial hierarchies, deal with grudges, and seek righteousness to atone for committed atrocities” (Kushner, 2015, p. 137).

3.3 Criminal Accountability and Punishment

A recurrent question pertaining to the pursuit of transitional justice for past human rights abuses is whether the perpetrators should be criminally prosecuted. And if prosecuted, whether or not they should experience some form of punishment, usually imprisonment, the loss of title and power, or the ability to serve in leadership positions again. Oftentimes this decision is political, hinging on who is in power at the time of democratization. Other times, issues of morality come into play, with new, democratic regimes and civil society debating whether victims have a right to see justice done, and if so, whether this right is conducive with the newly established system of rule of law Also, the question of who should be punished – the top leaders or their subordinates – will inevitably arise. Lastly, how does the justice system determine who was committing the abuses out of malice and who was following orders or coerced into committing them?

Punishing perpetrators of human rights abuses that occurred during the former authoritarian regime was handled very differently in South Korea and Taiwan. In the former, criminal accountability was dealt with most notably in the criminal trials – and convictions – of former authoritarian presidents Chun Doo-hwan and Roh Tae-woo for their involvement in the May 18, 1980 uprising and subsequent crackdown that took place in the city of Gwangju. However, Taiwan has yet to have such a discussion, at least amongst its political elite and the broader society. Up to now, not a single leader or person who was in a position of using or ordering state violence during the authoritarian period has been held criminally liable for their actions. This chapter will explore both South Korea and Taiwan’s approach to this sensitive area of transitional justice, looking at how the situation in each country developed.

3.3.1 South Korea – Criminal Trials, Subsequent Amnesty

Kim Young-sam, the first civilian leader in South Korea since Rhee Syngman, was a moderate, compromise choice in the 1992 presidential election. His election was the

‧ 國

立 政 治 大 學

‧

N a

tio na

l C h engchi U ni ve rs it y

33

outcome of a surprise merging of the Democratic Justice Party of Roh Tae-woo and his own opposition Democratic Reunification Party, a political calculation performed to defeat his opposition rival, Kim Dae-jung. Because of this move, “most civil society groups remained profoundly suspicious about what he could and would do to break with the authoritarian past and to further the democratic consolidation of South Korea” (Kim, 1997, p. 1140). Contrary to their suspicions, however, the Kim Young-sam government embarked on a number of liberalizing reforms, including changing the patronage-based banking system, demilitarizing South Korean politics and society, and meeting with both moderate and radical civil society groups to engage in dialogue.

At first, Kim refused to take any kind of action in regard to rectifying the wrongs of the past, including the horrific Gwangju events that were still fresh in many Koreans’ minds, and instead argued “that the truth should be reserved for historical judgement in the future” (Kim Young-sam, as quoted by Cho, 2007, p. 581). This is not surprising, considering his party and part of his support base consisted of politicians with military backgrounds. Despite strong public pressure to investigate and punish the architects of the coup and perpetrators of the Gwangju 5.18 Incident, Kim stalled, and the judicial branch followed suit.

Between July 1993 and October 1994, the Seoul Prosecutor’s Office conducted an investigation at the behest of a number of military officers who had been arrested by Chun in the course of the December 1979 coup d’état (West, 1997, p. 104). It found the military takeover carried out by Chun Doo-hwan and other military leaders constituted

“military insurrection,” but it did not pursue charges against them. Further investigation took place nearly a year later, after which the Office decided Chun’s December 12^th coup and the crackdown in Gwangju were “‘unindictable offences’ for which the state had ‘no authority to prosecute’” (Waters, 1996, p. 465). According to Cho (2007), the Seoul Prosecutor’s Office was “concerned that prosecuting the military leaders might cause political, social, and legal confusion because, legally speaking the democratic-civilian government was a legal successor to the previous Chun and Roh governments” (p. 582).

Meanwhile, a petition requesting constitutional review was submitted in 1995 to the Constitutional Court, filed by some 300 citizens (Waters, 1996, p. 465; West, 1997, p.

‧ 國

立 政 治 大 學

‧

N a

tio na

l C h engchi U ni ve rs it y

34

105). The Court handed down a decision deeming the prosecution of the two former presidents to be constitutional because the statute of limitations “automatically ceases during the incumbencies of the former presidents according to Article 84 of the Constitution,” which stipulates that sitting presidents can’t be charged with any crime except for mutiny or treason (Cho, 2007, p. 582). Chun and Roh could no longer be charged with treason for the 1979 coup, but the statute of limitations could apply from the end of their five-year terms, allowing for prosecution of other offences (West, 1997, p.

105). The Court’s ruling also condemned the Prosecutor’s Office’s refusal to indict Chun and Roh, stating that “a successful coup is also subject to the law” (Waters, 1996, p. 466).

While Korean society waited for the Constitutional Court’s ruling, revelations of large-scale corruption surfaced. It was first revealed that Roh Tae-woo had amassed a slush fund of about US$650 million during his presidency, and later that Chun Doo-hwan had

“coerced US$900 million from Korea’s chaebols” (Waters, 1997, p. 461). This

information was extremely damning, not only for those directly involved, but even for Kim Young-sam’s newly formed Democratic Liberal Party, as it still had ties to the previous government. Some opposition politicians, including Kim Dae-jung, alleged that Kim Young-sam had benefited from Roh’s slush fund during his 1992 campaign. In reaction to this, the Kim government arrested Roh on charges of corruption in November 1995, stating later that Roh, Chun Doo-hwan, and other instigators of the 1979 coup and 1980 Gwangju crackdown would be punished with “special legislation” which would

“demonstrate to the people that justice, truth and law live on this land” (West, 1997, p.

113). Chun was also arrested and interrogated in December about the events of May 1980 and charged with mutiny and treason, although not before dramatically refusing to

cooperate with the Seoul District Prosecutor’s Office (Ibid., p 115).

The combination of the Roh Tae-woo scandal and immense public pressure, including petitions, student protests, and civil suits pushed the National Assembly to, in a rare example of bipartisan cooperation, pass the Special Act Concerning the May 18

Democratization Movement (also called the Special Act) in December 1995 (Cho, 2007, p. 583; Han, 2005, p. 1007; Waters, 1996, p. 461). The Special Act was intended to

“suspend the statute of limitations for the crimes against the constitutional order which

‧ 國

立 政 治 大 學

‧

N a

tio na

l C h engchi U ni ve rs it y

35

had been committed on and around December 12, 1979 and May 18, 1980” (Cho, 2007, p. 583). The statute also granted a retrial to those who had been prosecuted for their involvement in the Gwangju Uprising or for opposing the authoritarian state.

The trial of the Roh Tae-woo began the same month that the Special Act was passed, but only on charges of corruption. Nine of Korea’s most prominent business leaders were also put on trial for allegedly providing funds to Roh in the form of bribes, the main sources of his slush fund (WuDunn, December 1995). Chun, who had gone on hunger strike while being held in a Seoul detention cell, was additionally indicted for bribery in January 1996. Both had destroyed the account ledgers that would have divulged who had provided how much money and what that money was for (Roehrig, 2001, p. 176).

As the judicial process pressed on, a second set of charges was added to the docket on December 21, 1995, this time for mutiny in relation to the December 12 coup d’état.

Chun had imprisoned several high level military officials in order to seize power from the sitting president at that time, Choi Kyu-ha, who had “quickly acquiesced in the seizure of the military command structure by Chun.” (Roehrig, 2001; West, 1997). Roh, “whose dispatchment of a regiment of troops helped provide the muscle for Chun’s coup” was

“rewarded a week later by being elevated to head of the Seoul Garrison Command”

(Waters, 1996, p. 463).

Finally, in January 1996, the last set of indictments were handed down on the matter of treason and the Gwangju crackdown. It was argued by the prosecution that Chun, who had not yet coerced himself into the position of president, and Roh, had “mobilized troops without presidential approval, encircled the Capitol Building and forced the cabinet to extend martial law nationwide” (Roehrig, 2001, p. 178). In Gwangju, where the uprising in reaction to the coup d’état was gaining traction, Chun had ordered troops into the city and to use live ammunition against the protesters.

The trial was a national spectacle and was massive in scale and scope, with court legal documents exceeding 150,000 pages (Han, 2005, p. 1008), but it also represented the first significant break from the authoritarian past, giving Koreans a sense of justice being served. Not surprisingly, the two former presidents were found guilty on all charges of

“mutiny, treason, and corruption in office” (Robinson, 2007, p. 172), while thirteen

‧ 國

立 政 治 大 學

‧

N a

tio na

l C h engchi U ni ve rs it y

36

officers involved in the coup and the Gwangju crackdown were also convicted. Chun was sentenced to death and fined US$283 million, while Roh was given 22½ years

imprisonment and a fine of US$355 million. The other involved officers were sentenced to between four and ten years (Roehrig, 2001, p. 179). Chun’s sentence was then

commuted to life imprisonment, and Roh’s to seventeen years. All were subsequently pardoned by the outgoing president Kim Young-sam in December 1997, the result of an agreement he reached with Kim Dae-jung.

The suspension of the statute of limitations was extraordinary, and it took a considerable amount of legal manipulation to defend it as being compatible with rule of law in a newly-democratized country. The Special Act “stipulated that the limitation period ceased to run during the period of the presidencies of Chun and Roh” (Cho, 2007, p. 583) with the rationale being that it would have been extremely difficult to level any charges against either president during their dictatorial rule. Some legal scholars have questioned the constitutionality of the Special Act, as it constitutes ex post facto legislation, possibly violates the principle of equality before the law, and treats specific acts as crimes, which goes against the notion of presumption of innocence (Waters, 1996, p. 482). If Korea was to disassociate itself from a past in which authoritarian regimes justified their excesses by bending the law to their whims, the new democratic government would need to consider how it pursued processes of transitional justice in the future.

Also, in an ironic twist, Chun had the audacity to claim that his due process rights were violated in the course of the trial (Minbyun, Personal Correspondence, February 7, 2017;

West, 1997, p. 102), though his claim may have some validity, as the latter part of the trial was rushed to ensure that he and Roh would not be freed. Waters (1996) believes that these issues could have been avoided “by simply charging the two in accordance with the Constitutional Courts mandate to the Prosecutor’s Office, and not at the whim of President Kim” (p. 483).