08.07.2022 Author: Konstantin Asmolov

Will Moon Jae-in be Successful in his Attempts to Reform the Public Prosecution Service?

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On June 27, 2022, South Korea’s Ministry of Justice appealed to the Constitutional Court against the new laws aimed at reforming and, in time, ending the Prosecution Service’s authority to investigate crimes. The Ministry believes that these laws are unconstitutional. This is the latest round in a political struggle which reached its height at the end of April and beginning of May this year, when, in the last days of Moon Jae-in’s term of office, the Democrats managed to force the controversial reform laws which dramatically limit prosecutors’ investigatory powers, through the National Assembly (South Korea’s Parliament).

The reform was one of Moon’s campaign pledges. He began by transferring some of the Prosecution Services’ powers to the police. While it previously had the authority to investigate any offence, following this reassignment the Service was left with the power to investigate just six categories of offence – those relating to corruption, economic crimes, the acts of state officials, major disasters, defense purchases and electoral violations.

The most recent reforms went even further, removing its investigatory functions entirely – its role is now limited to conducting prosecutions in court. The changes were an attempt to weaken the law enforcement bodies and make it more difficult to launch partisan investigations into the activities of high-ranking state officials and leading politicians. In transferring the investigatory functions to the police, Moon was fully aware that the police lack the necessary skilled specialists and are almost entirely free from political control.

On April 15 the Democratic Party of Korea (known as the Toburo Democratic Party) submitted bills on the reform of the criminal justice system and the Prosecution Service. But the bills ran into difficulties when being considered by the Parliamentary Committee on Judicial reform. Although the Committee consisted of 12 Democratic and just 6 Conservative lawmakers, this majority was insufficient to ensure the bills were passed. The Government therefore had to resort to the extraordinary measure of pressurizing an independent lawmaker, Yang Hyang-ja, into supporting the bills. However, Yang, a former Democrat, was opposed to the bills. The Democrats then used their parliamentary majority to change the makeup of the Committee by replacing the stubborn Yang with the Democrat Min Hyung-bae, who left the Party so that he could join the Committee as an Independent.

Park Byeong-seug, the Speaker, then proposed a compromise: the police would be formally split up into local (municipal) police forces and a central police force (a kind of Korean FBI, responsible for conducting criminal investigations). When that central police body is established – possibly within six months or a year – it would take over the Prosecution Service’s investigatory functions, but until that happens the latter would continue to investigate corruption and economic crimes. Moreover, prosecutors would be barred from initiating criminal proceedings in connection with a case in which they had been directly involved in investigating. In other words, upon completion of an investigation a prosecutor would have to hand the case file to a colleague, who would be responsible for the court proceedings. If the police conclude that no offence has been committed then the individual against whom an investigation was launched will be entitled to submit a complaint.

On April 22 the Democrats agreed to accept the above compromise.

On April 27, 2022 the Democrats used their majority on the National Assembly Committee on Judicial Reform to force through the draft laws despite the objections of the opposition.

And then on April 30, 2022 the National Assembly (in which the Democratic Party held a majority, with 171 of the 300 lawmakers) passed the draft laws with 172 votes in favor, 3 against and 2 abstentions. The People Power Party boycotted the vote.

On May 3 the Korean National Assembly approved a second package of amendments to the Criminal Procedure Code and Moon Jae-in signed these amendments into law within a few hours of their approval. They will come into effect in September 2022. 164 of the 174 lawmakers present voted for the amendments, 3 voted against them, and 7 abstained. Again, the People Power Party boycotted the vote, as did the left-leaning Justice Party.

The decision to rush through these laws was severely criticized by the Prosecution Service, the Conservatives (People Power Party) and Yoon Suk-yeol, the newly-elected President. According to opinion polls, the majority of the respondents – 52.1% – are against the reforms, while 38.2% support them.

Han Dong-hoon, the nominee for Justice Minister is a fierce critic of the reforms, which is natural, given his background as a former public prosecutor, who has worked on investigations together with Yoon Suk-yeol. He has repeatedly insisted that the reform will make things worse for ordinary citizens, while allowing high-profile criminals to avoid punishment.

On May 6 the People Power Party filed a claim with the Constitutional Court, alleging that the methods used by the Democrats had infringed the rights of the lawmakers from the parties in opposition, by denying them the opportunity to discuss and vote on the draft laws.

They argue that the new laws are clearly unconstitutional, citing the following grounds:

  • Min Hyung-bae was wrongfully given the status of an “independent” lawmaker so that he could be appointed to the Committee, thus enabling the draft laws to be approved. Min Hyung-bae has since rejoined the Democrats.
  • The Committee should have allowed 90 days for the discussion of the draft laws, while in fact they wound up the session after 17 minutes and there was no sign of any discussion. Since the Democrats had secured a majority on the Committee, they just voted on the draft laws.
  • According to the law on proceedings in the National Assembly, a plenary session should open at 2.00 pm, but the session on May 3 was opened at 10.00 am, to enable amendments to the draft law to be submitted to a meeting of the Cabinet of Minsters. Moon Jae-in also rescheduled the meeting from 10.00 am to 2.00 pm so that there would be time to confirm and publish the draft laws.
  • Under Article 12 of the Constitution, prosecutors are public officials empowered to issue orders for the arrest and detention of and search for suspects. The removal of prosecutors’ authority to conduct investigations is thus in violation of the Constitution.
  • The new provision preventing prosecutors from challenging the results of a police investigation as a third party, if the police close the case without bringing charges may also be unconstitutional.
  • The amendments approved by the National Assembly and the Cabinet of Ministers do not specify whether prosecutors should transfer cases which are already under investigation to the police when the amendments come into effect in September. This may result in duplication of the functions of the prosecutors and the police during the transition period.

As a result, the Ministry of Justice and the Public Prosecutor are challenging the reforms at the highest level, and there is a possibility that the Constitutional Court may reverse the changes. However, it is unclear whether Han Dong-hoon’s attempt to turn back the clock will be successful – eight of the nine judges in the Constitutional Court were appointed during Moon Jae-in’s presidency, and five of them are considered to be left-leaning in their political views. While the appeal is under way, the government is therefore also seeking to strengthen its supervision of the police, which it feels will have too much power as a result of the reforms. Naturally, the police are against this proposal – but that aspect of the reforms will be dealt with in a separate article.

Konstantin Asmolov, PhD in History, 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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