[VIEWPOINT]Minister must rescind orderJustice Minister Chun Jung-bae created controversy by ordering Prosecutor General Kim Jong-bin not to detain a suspect ― Kang Jeong-koo, a professor of sociology ― for the first time in the history of the prosecution.
The prosecution is destined to have tense relations with political power. The reason is that although it is created by political power, the prosecution has to investigate cases related to political power, which is bound to cause corruption.
Because of this inherent structure, the prosecution became a handmaiden of power by obeying it during the dictatorships. Numerous corruption scandals involving leaders of past administrations were minimized and covered up, and the true nature of those cases remained concealed because the prosecution succumbed to power and could not carry out a fair investigation. Here also lies the reason for the people’s deep distrust of the prosecution.
Since a “participatory” government took office, however, the prosecution has secured independence and neutrality of its own accord, by disclosing the substantial truth through investigations of people close to the president and the chairman of the ruling Uri Party in political scandals, such as illegal presidential funding. It also has now regained the people’s trust to a considerable degree.
But because of the “original sin,” when the prosecution became the handmaiden of power during past dictatorships, those with political power still do not believe in the prosecution. To check the prosecution, those in power even came up with a plan to form a “Corruption Investigation Office for Public Positions,” working directly under the president, and demanded the prosecution “give up power that is entrenched in prosecutors.”
As a challenged force, the prosecution’s impartiality is always tested in political cases. For this reason, the justice minister has the duty to protect the prosecution from the misuse of political power. If the justice minister fails to shield the prosecution, the prosecution is bound to collide with political power and its neutrality and independence will be undermined.
Article 8 of the Prosecution Office Law allows the justice minister to have only general supervisory power and the prosecutor general to have supervisory power in specific cases. This is to ensure the justice minister keeps the prosecution from external pressure from the political community. Earlier, at his inauguration, Justice Minister Chun pledged to do his best to help the prosecution exercise its power strongly.
Nevertheless, the justice minister broke his resolution and unreasonably exercised his supervisory power over investigations on the pretext of that provision in the Prosecution Office Law.
As a result, the justice minister himself ended up exercising outside pressure to influence the prosecution. It goes without saying that if the highest supervisor of the prosecution office puts pressure on the prosecution, the prosecution’s independence will be damaged.
As the basis for his order not to detain Professor Kang, the justice minister pointed out that our constitution ensures the maximum physical freedom of the people by prescribing it as a basic right and that the Criminal Procedure Law allows detention only when it is feared that evidence may be destroyed or the suspect may run away.
But the detention or non-restraint of the suspect is a matter to be decided by the prosecution, an investigation agency, and the court, a judiciary agency, not a matter to be prejudged in advance by the justice minister. If the justice minister interferes with the physical restraint of a suspect, the prosecution will not be able to make independent judgments on public security cases from now onward.
As the justice minister took sides using political power, the prosecution now has nothing to rely on. The prosecution has no other option but to secure its position, even if it has to fight against political power. To prepare for such a situation, the prosecutor general’s term is guaranteed.
Just as the wheel of history cannot be turned back, neither can the prosecution return to its practices of the past. If political power exercises pressure on the present prosecution while criticizing prosecutions of the past as handmaidens of power, it will make the present prosecution become another handmaiden.
This means that the present administration is no better than the past authoritarian governments. The justice minister should preserve the rule of law in this land by showing the courage to cancel his order to the prosecutor general not to detain Kang Jeong-koo.
* The writer is a lawyer and Korean Bar Association spokesman. Translation by the JoongAng Daily staff.
by Ha Chang-woo