'Too powerful, too political': reining back prosecutorial power

The flag of the prosecution and the Korean national flag are hoisted side by side in front of the Seoul Central District Prosecutors' Office in southern Seoul. / Korea Times file

Debates rise over new investigative body for high-profile cases

By Lee Suh-yoon

The promise of prosecutorial reform has been made by almost every Korean presidential candidate. However, few had the political will or courage to try once elected. None have come this close.

The prosecution's investigation into allegations surrounding short-lived former Justice Minister Cho Kuk's family has reignited the debate over the political neutrality of what is essentially a non-elected office of civil servants, sparking public support and attention to fast-tracked bills aimed at curbing the agency's extensive powers. One prominent idea is setting up a separate investigative body for crimes of high-ranking public officials.

Korean prosecutors have powers that are not granted to their counterparts in other developed nations. They have the exclusive right to criminally charge someone, except some minor crimes left to the police. They also carry out direct investigations into cases in place of the police. Prosecutors can direct or take over any police investigation and often initiate the investigations themselves in some high-profile cases involving politicians or big companies.

By law, German and Japanese prosecutors are also allowed to direct investigations at times, but neither exercise this monopoly and leave the investigative work to the police, unlike the Korean prosecution that devotes a large chunk of personnel and resources exclusively to investigative work. This monopoly of investigation and indictment powers is rare. In the U.S., prosecutors can only indict suspects.

"Korean prosecutors are a one-of-a-kind in the world in the discretion they wield over investigations, indictment and even execution of a court sentence," said Jung Han-joong, a professor at Hankook University of Foreign Studies Law School and former head of a truth-finding commission into the prosecution's past wrongdoings.

Besides its immense power in investigations, the prosecution has often been criticized for collusion with business and political interest groups, and this is why the organization has long been sarcastically called the "handmaiden of power," used by those in power to control their political enemies.

To tackle these entrenched problems of prosecutorial power, a fast-tracked prosecutorial reform bill is being discussed at the National Assembly.

Parties agree the prosecution's power and intrusion into politics must be checked, but significantly diverge on how, in particular, on the establishment of a separate body to take charge of high-profile investigations.

The new body is designed to divide the prosecution's monopoly over investigations and indictments and cut out the prosecution from high-profile cases so the investigation into such cases will be made in a "fairer" way.

According to one bill put forward by the ruling Democratic Party of Korea, the body will be given the power to investigate any crimes allegedly committed by a high-ranking public official, including ministers, judges, police officers and prosecutors, and the president's relatives. Lawmakers are not currently on this list.

If the new body is created it will investigate allegations of such people's abuse of power, dereliction of duty and acceptance of bribes or illegal political funds. To allay the fear of creating another unchecked power, the prosecution will maintain the power to indict suspects investigated by the new body, except when the suspect is a prosecutor, judge or a police officer.

The head of the new body will be decided after a committee recommends two candidates, the president will select one of them, and the candidate will then go through a National Assembly confirmation hearing.

The minor opposition Bareunmirae Party has submitted a similar bill, which was also fast-tracked, with more a complicated process for indictment and appointment of the body's chief.

The bills' supporters say the new investigative body's power will be kept in check by an external personnel committee, which will involve members recommended by the opposition parties.

The main opposition Liberty Korea Party (LKP), however, is adamantly against such an investigative body, saying it could easily be controlled by the administration to target the opposition.

"It would cover up the wrongdoings by President Moon Jae-in's aides while taking revenge on his political enemies," LKP floor leader Na Kyung-won said Wednesday. "Ruling party lawmaker Rep. Lee Jong-gul recently said this new investigative body was necessary 'to investigate people like LKP Chairman Hwang Kyo-ahn,' basically admitting it can be used to press false charges."

The LKP claims the new body will not have political neutrality as its head is appointed by the President. It also says the scope of investigation, especially in cases related to the abuse of power, could be misused to charge those critical of the government.

Not all members of the ruling party agree with the establishment of the new body. Lawmaker and former prosecutor Keum Tae-sup, while agreeing the prosecution willfully meddled in political cases, says creating another body with the power of both investigation and indictment was dangerous.

"We should think very hard about whether we need another new institution of power," Keum said in a policy debate at the Seoul Press Center, Monday. "Nowhere in the world is there an institution with the exclusive power to investigate and charge high-ranking public officers."

The institution could also have a negative "chilling effect" on investigations or trials due to its excessive surveillance of prosecutors and judges, Keum added.