South Korea just rebuilt its prosecution service from scratch, and the new building is about a day old. On Friday the country abolished the Prosecutors’ Office after 78 years and replaced it with a scaled-down Public Prosecution Office that only indicts, while investigations move to a separate serious-crime agency. So you might expect the new outfit’s first weekend to be quiet. Fresh letterhead, new reporting lines, settle in.
Instead, on the second day, the new office’s own head of internal inspection posted a message on the internal network accusing the Justice Ministry of running an illegal operation. Kim Sung Dong, inspection bureau chief of the Public Prosecution Office — a prosecutor-general-rank official — wrote that even as the launch of the office marks “a major change in the criminal justice system,” a “serious threat to the independence of prosecutors’ duties is still proceeding in the form of the truth-investigation team’s composition and activities,” according to the Chosun Ilbo’s account of the legal community’s reaction on Saturday.
The target of his ire is the Justice Ministry’s Committee for the Future of a Human-Rights-Respecting Prosecution — the “Future Committee” — set up in June to examine alleged human rights violations and abuses of authority in prosecutors’ exercise of their powers, and to devise measures to prevent recurrence. The committee’s fact-finding team has since designated 19 cases for investigation. Kim’s charge is about how, and under whose authority, that team got to look at them.
The legal mechanics go like this. Under Article 8 of the Prosecutors’ Office Act, the justice minister may command and supervise prosecutors on specific cases — but only through the prosecutor general. Kim’s argument is that when former Justice Minister Chung Sung Ho directed the formation of the committee and its investigation team, the directive did not clearly state, on the basis of Article 8, that the prosecutor general’s command authority was being excluded. If it didn’t say that, Kim wrote, then it was “a roundabout, quasi-legal directive aimed at evading political responsibility” and itself a violation of the act.
Then there’s the sequence. According to Kim, the prosecutor general’s command authority was carved out first, before any specific cases were identified, and the target cases were added afterward. Pulling command and supervision authority from the prosecutor general — or his acting stand-in — across the board, in cases where neither the acting prosecutor general nor his associates or family had even been confirmed to be involved, amounts to an abuse of the justice minister’s own command authority, he argued.
And here is why he thinks it matters rather a lot. The 19 cases on the committee’s list include six prosecutions of President Lee Jae Myung from before he took office: the Ssangbangwool illegal remittance to North Korea, the Daejang-dong, Wirye New Town and Baekhyeon-dong development corruption cases, the illegal Seongnam FC sponsorship case, and the Gyeonggi Province corporate card misuse case. None of these has produced a first-instance verdict yet. Under South Korea’s Criminal Procedure Act, charges may be withdrawn by prosecutors at any point before the first verdict is delivered.
So picture the arrangement: a justice-ministry panel, operating outside the prosecutor general’s chain of command, reviews live cases against the sitting president, in the only window of those cases’ lives during which someone could lawfully decide to drop them. Kim wrote that, with many cases still at trial, “it is possible to institutionalize a channel for the Justice Ministry’s direct intervention as to investigation results, in the form of regulations and guidelines,” and that if measures were taken on pending cases based on “the illegal truth team’s composition and activities,” that would be “a serious danger and threat to the constitutional prosecution system.”
He closed with a line you rarely see on a government intranet: “If you lose expertise, you lose a little; if you lose independence, you lose everything. Without independence, you are alive but dead.” He added that he hopes no action will be taken on pending trials based on the committee’s work.
It is worth noting what the committee is for, on paper: uncovering alleged human rights violations and abuses of authority in the exercise of prosecutorial power and preventing recurrence — a rationale that polls well in a country where the old Prosecutors’ Office spent decades as arguably the most feared institution in politics. That is presumably also why critics in the legal community, quoted by the Chosun Ilbo, suspect a somewhat narrower purpose: that the committee exists to conclude the investigations into Lee were flawed, providing the rationale for prosecutors to withdraw his charges before verdict. Nothing in the committee’s setup prevents the legitimate version and the convenient version from being true at the same time, which is usually how these things go.
Anyway. The old prosecution service spent 78 years being accused of too much independence from elected government. The new one is one day old, and the accusation on the table is that it doesn’t have enough.