Let it not be a hundred years

By Cho Hee-kyoung

One of my favorite TV dramas used to be a crime series called Law & Order. Following a now well-worn formula of a police procedural, the show began with the following narration: "In the criminal justice system, the people are represented by two separate, yet equally important groups: The police, who investigate crime; and the district attorneys, who prosecute the offenders. These are their stories."

Often based on real crimes ripped from headlines, each episode was split into two halves: the first half followed police detectives investigating a crime; the second half focused on the Manhattan District Attorney's Office, the prosecutors, trying to convict the suspect in court.

This separation between the power to investigate and the power to prosecute a crime is another manifestation of the principle of separation of powers. It aims to prevent the concentration of power by providing for institutional checks and balances. Applied to the government, it divides the executive, legislative and judicial branches to provide checks and balances for each other.

Applied to the criminal justice system, it splits the power to investigate and the power to prosecute a crime between the police and the prosecution office, respectively, with each limiting the other's potential misuse or abuse of its powers.

In Korea, however, because of a historical legacy, the two powers of investigation and prosecution had been concentrated solely in the hands of the prosecution office for almost 70 years. When the Criminal Procedure Act was enacted back in 1954, the police department was so deeply mistrusted by the general public for having been the lackeys of Japanese colonial power that the legislature felt their power needed to be curbed and overseen by the prosecution.

Even then, some lawmakers voiced the concern that giving the prosecution too much power would lead to abuse of those powers. But in the end, the anti-police sentiment won out and the prosecution were given the power to exclusively begin and end criminal investigations, to oversee any investigation by the police and to indict any suspect.

The prosecutor-general who attended the legislative session testified that in theory it was right that investigation should be left up to the police and the prosecutors should only have the right to indict but that in Korea that would only be possible "in a hundred years' time."

Over the next decades, especially under the successive authoritarian regimes, the concerns voiced over such a concentration of power in one agency became realized. If the same person both investigates and prosecutes a crime, there is always a risk of confirmation bias.

One becomes so convinced of the guilt of the accused that one may fail to adduce exculpatory evidence even though it is one's duty to do so; or one may even go as far as concocting incriminating evidence to secure a conviction. There is also more pressure to bring an investigation to a successful conclusion through a conviction despite insufficient evidence that can be difficult to resist.

What is even worse is where the prosecution deliberately refrains from filing charges, either for personal or political gain, even though there is plenty of evidence pointing to the accused's guilt. This seems to happen a lot particularly when the suspect is one of their own. The numbers tell the story. In the five-year period up to 2019, there were around 11,000 cases where a prosecutor was accused of having committed a criminal offence.

Out of those, the prosecution filed charges only in 14 cases, a rate of only 0.13 percent. Compared to the charge rate of over 40 percent against ordinary people, the discrepancy is too vast to ignore. The case of Kim Hak-ui, the ex-vice minister embroiled in a sex bribery scandal whose likeness was captured on video in flagrante delicto but where the prosecution initially declined to press charges, is indelibly recalled.

There have been bipartisan efforts to reform the prosecution office over the years. Attempts to separate the power to investigate from the prosecution under both Kim Dae-jung and Ron Moo-hyun administrations failed due to strenuous opposition from the prosecutors. Under the Lee Myung-bak government, a partial reform occurred allowing the police to begin an investigation but the prosecution continued to grip on to their authority to conduct and supervise any investigation.

More substantive reform began under the Moon administration. All investigation power was given to the police except in six major crime areas together with the power to decide when to conclude an investigation. The prosecution's oversight of police investigations was also rolled back. A new agency, the so-called "Gongsucheo," or Corruption Investigation Office for High-ranking Officials, was set up.

However, the prosecution still retained the power to investigate crimes relating to finance, corruption and bribery, defense industry, major disasters, elections and public officials. Despite President Moon Jae-in declaring the successful accomplishment of much-needed prosecutorial reform, there was a lot of criticism that this was an incomplete reform at best.

Two years later, spurred on by the prospect of a former prosecutor-general becoming the next president and restoring the prosecution office to its former glory, the Democratic Party of Korea sprang into action. It proposed to strip away all investigation powers from the prosecution office but after much procedural rule-bending and other legislative shenanigans, the compromise bills finally passed by the National Assembly still leave some investigation power with the prosecution office.

Yet more reform is needed for a proper oversight of police and better safeguarding of citizens' basic rights. Let's hope that we won't have to wait for another 30 years for a proper separation of powers in our criminal justice system.

Cho Hee-kyoung (hongikmail@gmail.com) is a professor at Hongik University College of Law.