26.01.2021 Author: Konstantin Asmolov

Key Features of the Ongoing Law Enforcement Reform in ROK and Possible Issues

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After the author published a number of reports about various changes made to the way South Korea’s law enforcement agencies operate, he has received a number of requests to outline what these reforms would mean and entail.

In his inauguration speech in May 2017, Moon Jae-in promised to ensure law-enforcement authorities would “be detached completely from politics” and to establish systems to keep all powerful “organizations in check so that no such” bodies could exercise infinite powers. There were good reasons to make these pledges because incompetence of intelligence agencies and scandals, such as the public opinion manipulation one, dealt a serious blow to the reputation of these bodies. So have investigations that revealed Park Geun-hye had received millions of dollars worth of bribes from the National Intelligence Service (NIS) via her closest aides during her presidency.

In addition, Moon Jae-in must have also made the aforementioned promises in his own interests so as to avoid the fate that typically befell former ROK presidents, who, barring few exceptions, were toppled, killed or imprisoned.  He was encouraged to continue with the reforms after waging a partially successful war against the legal system (see the case against Chief Justice of the Republic of Korea Yang Sung-tae) and unexpected actions taken by Prosecutor General Yoon Suk-yeol, who, instead of taking orders from the top, started to try and rid not only conservatives but also democrats of corrupt actors.

On September 21, 2020, new NIS Director Park Jie-won said that his agency would “never get involved in domestic politics under any circumstances,” and that he would “push to legislate a ban on” such activities.

On December 13, 2020, the National Assembly unanimously (187-0 excluding lawmakers of the main opposition who boycotted the voting) passed a contentious revision to the National Intelligence Service Korea Act “aimed at transferring the state spy agency’s authority to conduct anti-communist investigations to the police.”  It was among the three most recently approved bills as part of the reform of “so-called powerful institutions.” The other two include a major police law revision that “introduces a local autonomous police system and allows the establishment of a national investigation office and a bill on facilitating the launch of the Corruption Investigation Office for High-ranking Officials (CIO)”.  A bill on providing a legal guarantee for the CIO was approved by lawmakers a year ago, but its launch was delayed because the opposition used its veto power in the process of appointing the CIO chief. Prime Minister Chung Sye-kyun said the passage of the latest bill was a democratic stepping-stone “for the prosecution, the police and the National Intelligence Service to be born again.”

The revised law takes force after a three-year grace period. It will be easier to discuss the essence of each reform by analyzing their effect on each agency.

 National Intelligence Service (NIS)

Its name will be changed to the External Security and Intelligence Service. In fact, this happened on three previous occasions, as from 1961 to 1980 it was referred to as the Korean Central Intelligence Agency (KCIA), during the 1981 to 1998 period, it was the Agency for National Security Planning (ANSP) and starting in 1999 – the National Intelligence Service.

The new NIS act essentially limits the scope of the agency’s intelligence gathering to North Korea, overseas matters, terrorism protection and other less politically sensitive issues.  It also deprives it of the right to carry out anti-communist investigations. In addition, its authority to investigate espionage or national security-related cases is to be transferred to the police.

Still, NIS will continue to fight terrorism.

Prosecution Office

The power of the prosecutor’s office is to be curtailed and more authority given to the police. However, there are no plans to establish a body similar to the Investigative Committee of Russia.

The powerful agency will be allowed to conduct direct investigations in just six kinds of felony, such as corruption, large-scale fraud, sabotage, election interference, crimes in the defense sector, and major accidents and incidents. The revisions to the Criminal Procedure Act will enable the police to close probes of cases without approval from the prosecution.

And the establishment of the CIO means that this non-prosecution body is to be tasked with investigating corruption among senior government officials, leaving the prosecutor’s office to deal with lower ranking public servants and the populace.

National Police Agency (NPA)

The police will take over counterintelligence investigations from the NIS, including those involving North Korea. It will also work on cases that the prosecutor’s office will not be directly involved in.

In accordance with the revised Police Act, the NPA is to be divided into the national and local autonomous police forces, with many duties previously performed by the NPA to be handed over to police units under the local government. In addition, a new National Investigation Bureau (similar to the FBI) is to be established. The independent body is “designed to separate the police’s investigative and public safety functions.”

Details of what the local police agencies will be like are yet to be worked out, including what duties these units should take over from the NPA and how much investigative rights local police should be given.

Corruption Investigation Office (CIO)

The office for investigating allegations of corruption (widely viewed as any form of undue interference in government affairs) levelled against high-ranking officials and their family members is essentially an independent agency of the South Korean government, with the authority to take over relevant cases initiated by the police and/or the prosecutor’s office. The head of CIO is to serve for ten years in comparison to the 2-year appointment of the Prosecutor General, which could mean that during the next presidential term, a candidate chosen by Moon Jae-in could remain in this position and may be reluctant to investigate the current leader and his inner circle.

On December 31, 2020, inaugural chief of CIO Kim Jin-wook put worries that the new body would exercise unchecked power to rest. “There are concerns that the CIO may become an all-powerful institution, but its authority comes from the people,” he said. Although Kim Jin-wook has portrayed himself as a ‘centrist’, he is suspected of pro-government inclinations because of his earlier application for the position of director of the Human Rights Bureau in the Justice Ministry. In addition, conservatives think he lacks experience in investigations, and “some legal experts expect him to play a secondary role in the CIO while one of his deputies will serve as de facto head of the office”.

Criticism

According to an editorial published by The Korea Herald on September 24, 2020, it would better serve the country’s interests to match the NIS’ “function of collecting anti-espionage intelligence with investigative power while putting a strict ban on its possible involvement in domestic politics”.

The article also said that “the planned transfer of anti-espionage investigative authority from the NIS to the police could weaken the security posture of the nation.” After all, “the police have investigated mostly domestic criminal cases,” and gathering intelligence and conducting counterespionage operations abroad “are out of their domain.” The article includes an example from 2006 when “an underground group was found to have engaged in espionage activities for North Korea.” Their existence was exposed after NIS agents learned through their covert channels that some members of the group had secretly contacted North Korean agents near Beijing. The police could not have uncovered such a group.

According to the editorial, the NIS is an institution tasked with doing work it has the experience and skills to perform well. Besides, there have not been too many cases of people being falsely accused of spying for the DPRK.

In addition, the report states that if the police become too powerful, they will likely produce serious side effects such as human rights violations. And South Korea’s police have a history of suppressing anti-government protesters brutally. For instance, in 1987, police officers tortured a university student to death during an interrogation to get information on a fugitive democracy activist.

Furthermore, the police have been accused of reneging on their obligation to maintain political neutrality before, clearly seen in its tepid investigations of the Blue House’s intervention in the Ulsan mayoral election in 2018. There are also concerns about a reshaped law enforcement body that will take over the right to conclude investigations on its own, and a lack of checks on the behemoth police organization.

In addition to the aforementioned criticism, the author thinks that the reforms could lead to a decrease in local crime rates because it will become easier for the populace to bribe member of local vs. central authorities.

Over all, one gets the impressions that instead of an overly powerful prosecutor’s office, heavily criticized by Moon Jae-in, there will now be a stronger police force and a fairly “toothless” intelligence agency in its place.

Conservatives have also said that the ongoing reforms stem from the fact that Moon Jae-in is an undercover communist who could destroy the nation in the interests of the DPRK and in order to strengthen the position of his inner circle. After all, the government’s reform drive could result in taming law enforcement agencies to the will of political power rather than enabling them to better serve the interests of people by achieving justice. For example, when “pro-North Korean university students formed a committee to welcome” DPRK leader Kim Jong-un and “praised him publicly on the streets of Seoul” (while the conflict on the peninsula is still ongoing), the “police dawdled in their investigation.” To make matters worse, the government then “dismantled a North Korean defectors’ group for flying balloons carrying anti-North Korea leaflets” towards the DPRK, and police investigated sponsors of the group.

However, the revised laws are to be enacted after a three-year grace period, perhaps, at a time, when Moon Jae-in is no longer President. After the aforementioned changes, the leader’s approval ratings fell. And we shall have to wait until the end of the year to see whether some of these plans will take shape or not.

Konstantin Asmolov, PhD in History, a leading research fellow at the Center for Korean Studies of the Institute of the Far East at the Russian Academy of Sciences, exclusively for the online magazine “New Eastern Outlook”.


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