[CON] Institutionalization is no panacea

Do we need a new body of prosecutors to probe public officials?

*Prosecution reform has become a heated debate among presidential candidates. Park Geun-hye of the ruling Saenuri Party proposed a permanent body of special prosecutors, while Moon Jae-in of the main opposition Democratic United Party and independent candidate Ahn Cheol-soo suggest an independent office with authority to investigate allegations of wrongdoing by senior public officials. Prosecutors oppose establishing what they call a “second prosecution,” citing a conflict of interest and bureaucratic redundancy.

The presidential election has renewed debate on reforming the prosecution branch. One proposal would institutionalize the special prosecutor system by enacting a law mandating that an independent authority investigate corruption and wrongdoing allegations involving the president’s family or close aides, judges, prosecutors, senior government officials and politicians.

When a case falls into those categories, a special prosecutor could be named immediately and authorized to take the case and deliver punitive charges, saving a lot of political controversy and wrangling about choosing a special prosecutor every time a contentious scandal erupts. But it is not difficult to see that the effectiveness of any new act would be questionable because of political debate over the legal details - setting the terms of appointment, authorizing whom to name special prosecutor and others.

I cannot agree more that the existing prosecution process leaves a lot to be desired. But a permanent special prosecutor system would not be a cure-all for every the prosecutorial problem. If a special prosecutor office is institutionalized, it could turn into another mighty power, despite the good intentions. If the organization falls prey to political abuse and interests of a certain power, it could prove to be more trouble and divide society by exploiting its sovereign status from the constitutional trias politica principle, or separation of powers of the three branches of government.

For instance, California-based lawyer Donald Smaltz served as independent counsel in 1994 to investigate graft allegations related to U.S. Secretary of Agriculture Mike Espy. Espy was indicted on charges of receiving Super Bowl tickets, free use of luxury cars and other gifts. He was acquitted of all charges, despite Smaltz’s extensive case. Espy walked out of court an innocent man, and the special prosecutor’s role was ridiculed and questioned. The case led to a bipartisan agreement to scrap the law and replace it with a revised one allowing the justice secretary to appoint a special prosecutor if there is specific and reasonable cause to suspect wrongdoing by senior officials.

In addition, institutionalizing and maintaining a special prosecutor office would be expensive. Without adequate and specialized human and science and technology resources, it could not conduct sophisticated investigations and would inevitably seek assistance from the existing prosecution office. It then would not be able to fulfill its mandate to serve independently. A special prosecutor can preempt controversy about favoritism and investigative outcome. But we nevertheless need to look coolly into the advantages and disadvantages and the potential opportunities for abuse.

We currently include civilian panels in deliberating serious criminal trials. Since civilians have been given a participatory role, the prosecution’s investigative manner has changed greatly. It is because they cannot persuade and draw guilty rulings from civilian panels with poor logic and insufficient evidence. Civilians’ rights have been enhanced due to their participation.

Rather than creating another bureaucratic institution, it would be better to expand the civilian role in cases demanding special investigation. The prosecution should investigate politically sensitive and high-profile cases, but when they indict, they should be subject to review and deliberation by civilian jurors. On acquittals, we can also employ the Japanese system of allowing a civilian panel to invoke the right to overturn the decision and order indictment.

Translation by the Korea JoongAng Daily staff.

*The author is a professor of Sungkyunkwan University Law School.
By Roh Myung-sun