October 28, 2019
Rally calling for creation of anti-graft body held in Korea.
A large group of liberal protesters gathered near the National Assembly in Yeouido on Saturday chanting, “We the people must change the prosecution.”
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Among their key demands was the creation of an independent body to investigate corruption allegations involving senior government officials.
Similar calls also reverberated in front of the Supreme Prosecutors’ Office in Seocho-dong, southern Seoul.
Protests were also held by conservatives in Yeouido and Seocho-dong, protesting the proposed anti-corruption investigation body. On Friday, leaders of the main opposition Liberty Korea Party joined a rally calling for the abolition of a bill seeking to create an independent corruption investigation body and the resignation of President Moon Jae-in, among others.
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The consecutive weekend rallies by those for and against establishing an anti-corruption investigation body highlight the widening gulf between the ruling party and the opposition bloc.
Conservatives fear unchecked power of new body
More people support the establishment of an anti-corruption body than oppose it. According to Realmeter’s latest poll on Oct. 18, 51 percent of those surveyed said they favor the new body, while 41 percent opposed it.
However, legislators across the aisle do not see eye-to-eye on the proposed independent anti-corruption body and more broadly, how to achieve prosecutorial reforms.
The prosecution is alleged to have frequently mishandled corruption charges involving senior officials across all branches of the government. Prosecutors were seen to be lenient when investigating powerful politicians, tycoons or one of their own.
Liberals blame the exclusive power of prosecutors to investigate and indict people accused of wrongdoing, and the fact that no other government agency can check their abuse of power. They are therefore pressing for an independent anti-corruption body headed by a Cabinet minister.
Conservatives question the unchecked powers of the new body. More troubling, they point out, is that it can also demand the police or prosecution hand over an open case.
They are also unhappy with the composition of the proposed new body and the charges it can press. The bill put forward by the liberals mandates the president name the head from two candidates shortlisted by a separate committee, most of whose members are government officials. Hence, the conservatives doubt the independence of the proposed body.
They also worry that it can press charges not limited to corruption against senior public servants, such as abuse of power and dereliction of duty. They fear the agency could also have the power to charge an incumbent judge.
“Judges could face dereliction of duty charges for a prolonged trial, when in fact they need more time to deliberate a case,” said Cho Jae-yeon, a Supreme Court justice, at a recent parliamentary audit, adding that judges may then shy away from carrying out their impartial duties.
Liberal supporters allay concerns
Supporters of the anti-corruption body argue a committee, set up under the anti-corruption body to decide whom to indict, will keep it in check. They say the committee would comprise citizens over 20 years old and without a license to practice law or legal education, much like the grand jury in the US.
Conservatives, however, are reluctant to accept nonlegal experts. Currently, South Korean courts do not observe a jury trial.
“Deciding on indictment requires professional expertise in law. You need to be highly trained to make that judgment,” said Lee Ho-sun, a professor of law at Kookmin University.
Also, liberals say the anti-corruption body would be less politicized if the parliament’s consent is required before the president names its head. But conservatives dismiss that argument because the candidates are shortlisted by a committee dominated by sitting government officials.
Is it unconstitutional?
Conservatives argue the proposed body is unconstitutional.
The anti-corruption body would single out high-ranking officials for investigation. However, Article 11 of South Korea’s Constitution prohibits discriminating people based on position or their rank. Conservatives believe the proposed body violates the Constitution as long as it treats senior government officials differently from others.
“Senior public officials are in a way special, but we’re talking about criminal punishment here. We need the same procedures for all during investigations,” said Kim Sang-kyum, a professor of law at Dongguk University.
“If we don’t make sure that happens, then it’s a violation of Article 11 of the Constitution that stipulates ‘no discrimination based on one’s position or rank,’” he added.
Some legal experts, however, opine otherwise.
“The fact that senior rank officials are subject to different procedures alone does not justify the complaints,” said Cha Jina, a law professor at Korea University.
“We need to look at how the parliament will identify those high ranking officials and, particularly, if the probe will be objective,” she said.
“If those senior public servants don’t get the same fair and independent trial under the new body, then it will be a breach of the Constitution because the equal rights article entitles them to one.”
Will the bills be put to vote?
In April, the National Assembly fast-tracked a batch of proposed bills, allowing them to be put to a full floor vote without the approval of the relevant committees.
The ruling Democratic Party maintains the parliament should vote on the bills this week, but the conservative Liberty Korea Party, which refused to fast-track the bill, remains adamantly against it.
The National Assembly faces an impasse, as the Democratic Party has insisted on passing the anti-corruption body bill first before any other bills on the fast track, and all other parties are objecting to it.
It is not clear whether the parliament will be able to break the deadlock and bring the bills to the floor, but if the one on the new anti-corruption body is passed, it will reshape how South Korea’s once almighty prosecution exercises its power.
By Choi Si-young ([email protected])