[INSIGHT]Detention: The Exception, Not the Rule

Watching the court review the warrant requests submitted by the prosecution for the investigation of tax evasion charges against the owners of a few newspaper companies, I wondered why it was necessary for the suspects to be physically detained.

It was not because I felt pity for them nor do I have any personal acquaintance with them. And I understand that there are many people who strongly want them to be arrested and feel they should be dealt with strictly. But I continue to believe that the tax probes should be conducted without resorting to detention. That, I believe, would demonstrate to me that my own basic rights as a human being would be guaranteed and it is high time that the Korean courts implemented the principles of constitutionalism.

I do not have any personal relationship with Professor Kang Jeong-koo, charged with violating the national security laws in a visit to Pyongyang, but similarly I hoped he would be investigated without being detained. My hopes were dashed.

For both the cases above, the court issued detention warrants following customary practice on prosecutorial summons: on the belief that there were risks that the suspects would attempt to escape or destroy evidence.

Like all democratic nations, Korea's Constitution and criminal laws rest on the principle that investigations and trials should be conducted without the detention of the suspect. Suspects are detained only in exceptional cases when there are concerns that they will destroy evidence or go into hiding.

How likely were the owners of press companies to do so? The media tax investigation was conducted by the National Tax Office and employed a record number of staffs, who collected every scrap of evidence, even restaurant receipts. It is hard to imagine how the suspects would have been able to access any of the evidence to destroy. And the idea that the suspects would have run away, abandoning their wealth and positions, is risible.

The case for detention is even leakier when it comes to Professor Kang Jeong-koo. His main charge is to have praised the spirit of Kim Il-sung in a visitors' book during the recent Liberation Day festival in Pyongyang. That charge is already known to everyone, as it was aired on the TV news. It is impossible for Mr. Kang to destroy evidence since his actions were captured by the cameras. It is also well known that the prosecution has already confiscated other evidence such as lecture materials expressing thoughts that "benefit the enemy" from Mr. Kang's house. The possibility of Mr. Kang escaping is also implausible. If he had any intention of evading investigation he would not have returned from Pyongyang.

Some people may believe that this is a good opportunity to teach the "arrogant" press companies or a pro-North Korean such as Mr. Kang should be weeded out. However, physically detaining suspects for no convincing reason is a vestige of the ill judicial traditions of the authoritarian government of the past. We have become too comfortable with the practice of infringing human rights guaranteed by law as a means of punishment.

Most of us are familiar with one of Americans' basic human rights through the movies. When a cop arrests a suspect, he instantly tells him, "You have the right to remain silent... You have the right to speak to an attorney, and to have an attorney present during any questioning," and so on. This has been called "Reading someone his "Miranda rights."

Ernesto Miranda was not a law-abiding person. In 1963, he was arrested for kidnapping and raping an 18-year-old girl. However, once he was convicted the U.S. Federal Court ruled that he should be retried as he had not been informed of his rights to counsel. It ruled that all citizens have the right to equal protection by the law. Human rights in the United States were strengthened by this rational judgment.

It is a deplorable custom in Korea to detain suspects. It is a matter of regret for me that when I research the judicial records of the U.S. Federal Court － and the many stepping stones it has trodden to ridding the nation of bad practices of the part － I must rue the practices of my own country.

The courts should break with the bad practices of the past of detaining suspects. Many blame the prosecutors for requesting the courts for too many detention warrants, but the courts are also to blame for issuing them.

A saying goes: "True freedom is guaranteeing the freedom of the person one most reviles and opposes." It is the same with human rights. If you agree with the idea, I am of the opinion that those who support detained newspaper owners should demand Professor Kang's release and those who support Professor Kang should request the release of newspaper owners.

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The writer is a senior editorial writer of the JoongAng Ilbo.

by Yu Seung-sam