Constitutional Conflicts Regarding Surveillance and Judicial Procedures
Article 4. If a draft of a law concerning the suppression of crime is promulgated, which stipulates that law enforcement officers authorized under that law may intercept telephones or any communication devices to ascertain acts of abuse of power and arrest and search warrants without a warrant, and establish a court to consider the law specifically, with a special procedure to bring cases to a conclusion in that court, with a single court prohibited from appeal and revision, it shall be determined whether this draft law raises any issues in conflict with the Constitution. Specifically, the draft law concerning the suppression of criminal offenses shall be considered for conflict with the Constitution as follows: (1) The interception of all types of telephones and communication devices, as stipulated in Article 37 of the Constitution, shall not be carried out unless based on the authority of the law on state security or to maintain order and good morals of the Criminal Suppression Law, which authorizes interception to ascertain acts of violation, is a legal provision. (2) The arrest and search without a warrant, as stipulated in Article 237 of the Constitution in criminal cases for arresting and detaining a person, can be carried out without the person committing an offense or having a necessity, unless there is a warrant or order of another court to arrest without a warrant as stipulated in the law. And Article 238 stipulates that in criminal cases, searches in private residences shall not be carried out unless there is an order or warrant of a court or without a court order, as stipulated in the law. Therefore, if the draft law concerning the suppression of criminal offenses stipulates that searches can be carried out without a warrant or order, it does not conflict with the Constitution. However, if it is stipulated that law enforcement officers have the authority to arrest or search without a warrant or order, as stipulated in the Constitution, Articles 237, 238 (3) The establishment of a court to consider and adjudicate cases according to the draft law, specifically stipulates that all courts can only be established by Article 234 of the Constitution. However, the establishment of a new court to consider and adjudicate a specific case or charge is prohibited. Therefore, the establishment of a court according to the draft law is general, not for a specific case or charge, and does not conflict with Article 234 of the Constitution. (4) A special procedure is provided to bring cases to a conclusion in the newly established court, with a single court prohibited from appeal and revision, as stipulated in Article 235 of the Constitution, which prohibits legislation from having an effect or amending or modifying laws relating to the Constitution of the Court or a specific case. Therefore, the fact that the draft law stipulates that the court to be established is a single court does not conflict with Article 235 of the Constitution because the court to be established has the power to consider and adjudicate cases according to the draft law, not a specific case. In addition, the Constitution has provisions for cases to be considered by three courts. Therefore, the provision for bringing cases to a conclusion in a single court, as stipulated in the Constitution (2) is not permitted.