Kang Hyo-sang Files Constitutional Complaint Over Leak of South Korea–U.S. Presidential Call

Former United Future Party (now People Power Party (PPP)) lawmaker Kang Hyo-sang, who recently received a suspended prison sentence from the Supreme Court of Korea for leaking diplomatic secrets, has filed a constitutional complaint. He argues that in the charge of "leaking diplomatic secrets" applied to him, the concept of diplomatic secrets is so abstract and vague that it violates the principle of clarity in criminal law. Kang has stated that if the Constitutional Court of Korea finds the provisions unconstitutional, he intends to seek a retrial and fight for acquittal.
According to legal circles on the 11th, Kang recently submitted a petition for a constitutional complaint to the Constitutional Court of Korea on the 26th of last month. He claims that the phrase "diplomatic secrets" in Article 111(1) and Article 113(2) of the Criminal Act is unconstitutional.
Kang wrote on Facebook the same day that this move was "a response to the Supreme Court of Korea confirming the guilty verdict I received for partially disclosing the contents of a phone call between former President Moon Jae-in and U.S. President Donald Trump." He added, "Once again, I find this ruling unreasonable, and I have therefore filed a constitutional complaint with the Constitutional Court of Korea."
At the end of January, the Supreme Court of Korea upheld the lower court ruling that sentenced Kang to six months in prison, suspended for one year, on charges of leaking diplomatic secrets. A former diplomat, identified as A, who had passed the contents of the call between the two leaders to Kang, also had his sentence finalized: a four-month prison term with the execution of the sentence suspended, for leaking official secrets.
In relation to Kang’s leak of confidential information, the lower courts held that his actions fell outside the scope of parliamentary immunity, and the Supreme Court of Korea affirmed that view. The court of first instance ruled, "Given Kang’s standing committee assignments and other circumstances, his acts of holding a press conference or issuing a press release cannot be regarded as having been carried out within the National Assembly, nor are they related to his official duties." It also rejected the argument that the call between the two leaders did not constitute a diplomatic secret, stating that it was "information that must be protected and kept confidential until the agreed content is officially announced."
Explaining why he filed the constitutional complaint, Kang stated, "Article 113 of the Criminal Act provides no definition whatsoever of the scope or content of diplomatic secrets. The concept is excessively abstract and vague, making it impossible for an ordinary person with sound common sense and a normal sense of justice to determine what specific acts are prohibited."
Article 113(2) of the Criminal Act stipulates, "A person who leaks diplomatic secrets shall be punished by imprisonment for not more than five years or by a fine not exceeding 10 million won."
In his petition for a constitutional complaint, Kang also pointed out that the prospect of a visit to South Korea by President Trump had already been widely anticipated in the media. He cited the fact that in April 2019, Moon Chung-in, then Special Advisor to the President for Unification, Foreign Affairs and National Security, said, "When President Trump visits Japan in late May and late June, he may also come to Seoul." He further noted media reports stating that "President Trump is understood to have accepted President Moon’s invitation to visit South Korea during the South Korea–United States summit on April 11."
Kang argued, "In a similar case involving military secrets, the Constitutional Court of Korea in 1997 acknowledged that there was a risk of violating the principle of clarity and issued a partial ruling of unconstitutionality." He continued, "Likewise, the current provision on diplomatic secrets in Article 113 of the Criminal Act carries the risk that the authority empowered to designate information as confidential can arbitrarily expand its scope without limit, which runs counter to the principle of clarity under the nullum crimen sine lege doctrine."
He went on to say, "In particular, in light of the public’s right to know and freedom of the press, the provision cannot avoid being found unconstitutional," adding, "If the Constitutional Court of Korea rules that the part of Article 113 of the Criminal Act concerning diplomatic secrets is unconstitutional, I will seek a retrial and contest my innocence."
hwlee@fnnews.com Lee Hwan-joo Reporter