After former People Power Party lawmaker Kang Hyo-sang was convicted for disclosing the contents of a call between former President Moon Jae-in and U.S. President Donald Trump at a National Assembly press conference, he filed a constitutional complaint, arguing that the Criminal Act provisions on leaking diplomatic secrets, which formed the basis of the ruling, are unconstitutional.
According to legal sources on the 11th, the former lawmaker petitioned the Constitutional Court to review the constitutionality of the phrase "diplomatic secrets" in Article 113(1) and (2) of the Criminal Act, arguing it violates the Constitution.
Earlier, the Supreme Court's First Division (presiding Justice Roh Tae-ak) on Jan. 29 affirmed the lower court ruling that sentenced the former lawmaker to six months in prison, suspended for one year, on charges including leaking official secrets and leaking diplomatic secrets.
In May 2019, the former lawmaker received from a high school junior, identified as A, the contents of a call between the leaders of South Korea and the United States regarding U.S. President Donald Trump's visit to Korea. He then held a press conference at the National Assembly and said to the effect that "then-President Moon Jae-in requested a visit to Korea during his call with President Trump."
The contents of the leaders' call were classified as third-degree secrets by the Ministry of Foreign Affairs. The former lawmaker was found to have asked A to disclose the contents of the call, saying they would be used "only for reference in legislative activities as a National Assembly member."
Article 113(1) of the Criminal Act provides that a person who leaks diplomatic secrets shall be punished by up to five years in prison or a fine of up to 10 million won. Paragraph (2) provides that a person who investigates or collects diplomatic secrets for the purpose of leaking them shall be subject to the same level of punishment.
In September 2022, the court of first instance sentenced the former lawmaker to six months in prison, suspended for one year. The first trial panel said, "Specific details related to the U.S. president's visit to Korea must be strictly protected as secrets until they are officially announced for the sake of diplomatic trust between countries," adding, "Holding a press conference and posting a press release on Facebook and the website can be seen as collecting secrets for the purpose of disclosure."
The former lawmaker appealed, but the appellate court dismissed the appeal in Nov. 2023. The Supreme Court in January found no error in this judgment and dismissed the former lawmaker's final appeal.
In February 2024, the former lawmaker requested a constitutional review of the Criminal Act's offense of leaking diplomatic secrets, but the Supreme Court dismissed it on Jan. 29. He then filed a constitutional complaint on the 26th of last month.
On Facebook, the former lawmaker said, "The diplomatic secrets in Article 113 of the Criminal Act have no provisions regarding their scope and content, making the concept excessively abstract and vague," adding, "Because the scope can be infinitely expanded at the discretion of the authority designating secrets, it violates the principle of clarity under the nullum crimen sine lege doctrine."
He continued, "Regarding similar military secrets, the Constitutional Court acknowledged in 1997 that there was a possibility of violating the principle of clarity and issued a partially unconstitutional decision." He added, "If the Constitutional Court rules the diplomatic secrets portion of Article 113 of the Criminal Act unconstitutional, I will contest my innocence."
The former lawmaker's case is not subject to the pending system of appeals to the court under the revised law. The amended Constitutional Court Act allows constitutional complaints against court judgments that become final within 30 days before the law's effective date. The Supreme Court ruling in the former lawmaker's case was issued on Jan. 29, and 30 days have already passed.