Prosecutorial reform for whom?

Park Jung-won

The ruling Democratic Party of Korea (DPK) has unilaterally passed an amendment to the Criminal Procedure Act abolishing prosecutors' authority to conduct supplementary investigations into cases referred by the police. The legislation marks the culmination of a long-running effort to reduce prosecutors' investigative role. Yet this is far more than another episode in Korea's continuing debate over prosecutorial reform. It fundamentally changes the way criminal cases are investigated and prosecuted — and therefore directly affects the lives, rights and safety of ordinary citizens.

The principle of separating investigative and prosecutorial powers is not inherently unreasonable. Korea's prosecution service accumulated excessive authority over many decades, and its political neutrality has often been questioned. Successive progressive governments have therefore sought to reduce its investigative role. Reform was both inevitable and, in important respects, necessary.

But accepting the need for reform does not require accepting every measure advanced in its name. The real question is why the ruling majority chose to abolish such an important safeguard despite serious objections from legal professionals, investigators and many citizens. This is not simply a rearrangement of authority between two institutions. It is a fundamental change to the criminal justice system, and its consequences will be borne not by politicians but by victims, suspects and ordinary citizens.

A prosecutor reviewing a police investigation must decide whether the available evidence justifies bringing a person to trial. If the file is incomplete or legally defective, supplementary investigation can uncover overlooked evidence, correct mistakes or prevent an unjustified prosecution. It may expose weaknesses that would otherwise remain hidden until trial. Properly exercised, this authority protects not prosecutors but the public by reducing the risk that investigative errors become irreversible miscarriages of justice.

Under the revised law, prosecutors may still request further investigation. But that power may prove largely formal. Prosecutors who find serious problems in a police investigation will usually be able to do little more than return the case and ask the same police agency to investigate again. If the police stand by their original conclusion, prosecutors may have no practical way to verify disputed facts, question an overlooked witness or obtain missing evidence themselves before deciding whether to prosecute. What remains may be little more than an exchange of files while the underlying error survives.

Comparative experience points in a different direction. In Germany, prosecutors direct criminal investigations and may require or conduct additional investigative measures where necessary. The United States and the United Kingdom institutionally separate investigation from prosecution, yet prosecutors can do more than simply send a case back and ask the police to take another look. American prosecutors work closely with investigative agencies and may use grand jury procedures to obtain additional evidence. British prosecutors cannot investigate cases themselves, but their decisions on whether a prosecution should proceed give them substantial influence over whether important investigative deficiencies are addressed before charges are brought. The systems differ, but all preserve meaningful ways to correct serious investigative deficiencies before a prosecution decision is made.

Supporters of the amendment argue that allowing prosecutors to conduct supplementary investigations would preserve the old prosecution service in another form. But reform should be judged not by how completely it disables a distrusted institution, but by whether the replacement system protects citizens better, resolves cases more accurately and prevents mistakes from being passed from one agency to another.

Worse still, in the bill's final stages, the DPK added new grounds on which courts may dismiss prosecutions. A change with such significant implications for criminal procedure deserved rigorous scrutiny, not last-minute insertion into a controversial bill.

Before eliminating a safeguard that has long connected investigation with prosecution, lawmakers should have shown that its essential functions could be performed just as effectively under the new system. They did not. If this reform is truly designed for the people, why were so many warnings treated as obstacles to be overcome?

None of this means that prosecutorial reform should stop. Every democratic government has the right to pursue institutional reform consistent with its electoral mandate. The issue is not whether reform should continue, but why the DPK chose this particular design and forced it through despite sustained concern. A parliamentary majority may be enough to enact legislation. It is not enough to replace careful deliberation, public persuasion and broad democratic consent when the rules governing criminal justice are being rewritten.

The decision is even harder to understand against the country's wider political and economic backdrop. Many Koreans are struggling with housing costs, persistent inflation, deepening anxiety over the stock market and repeated controversies over senior appointments. Public frustration is no longer confined to one policy failure. It reflects growing doubts about the judgment, priorities and competence of those in power. Yet at precisely this moment, the DPK has pressed ahead with one of the most far-reaching changes to Korea's criminal justice system in more than 70 years. Whose interests does this reform ultimately serve?

The recent local elections already delivered a warning. Successive opinion polls showing a sharp decline in the president's approval ratings have reinforced it. One might have expected greater caution, broader consultation and some sign that the ruling camp understood the public mood. Instead, it chose once again to rely on its overwhelming parliamentary strength and move forward as though nothing had changed.

That is the most disturbing part of this episode. Those who invoke popular sovereignty more loudly than anyone else should be the first to listen when the people speak. Yet the ruling camp appears to treat electoral setbacks, falling approval ratings and public anger as temporary inconveniences rather than democratic warnings. A majority can overpower the opposition in the National Assembly. It cannot overpower the judgment of the people.

The public has already warned this government once, and the warning is growing louder. If those in power continue to ignore it while claiming to govern in the people's name, they should ask themselves one blunt question: Do they really believe they can keep governing this way and remain in power?

Park Jung-won (park_jungwon@hotmail.com), Ph.D. in law from the London School of Economics, is a professor of international law at Dankook University.