[PRO] Bias-free prosecution is essential

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[PRO] Bias-free prosecution is essential

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.





Institutionalizing special prosecutors differs from the current system, where the National Assembly authorizes the appointment of outside legal counsel to investigate a special cases. It would require a new special prosecutor act to legally define what cases require independent investigation and to authorize appointment of a special prosecutor in such cases.

We imported the system of special prosecutors from the United States.

Since its first application in a1999 lobbying case involving a businessman’s wife who lavished gifts of expensive clothes on the wives of politicians, special prosecutors have been used nine times. But somehow in the process, we ended up with something quite different from the original special prosecutorial system.

The United States has a special prosecutor law, which is a permanent and institutionalized system. Passed in 1978 after the Watergate scandal, the U.S. law was designed to prevent politics from interfering with the investigation and prosecution of government officials by using independent prosecutors. The law allows the hiring of special prosecutors by a panel of the U.S. Court of Appeals to handle cases that could run into potential conflicts of interests with administrative branches. The inquiry takes place discreetly and in principle has no time limit.

In our case, the National Assembly has to make a new law every time a politically scandalous case occurs to name and authorize a special prosecutor to investigate the allegation. The scope of inquiry, subjects and duration are preset. Past cases show that such investigations are highly publicized. The special investigation into the suspicion of unlawful purchase of a retirement residence by President Lee Myung-bak’s family is ongoing under similar terms. As a result, most investigations by independent counsel teams do not differ greatly from those by the state prosecution in failing to produce satisfactory results and raising more doubts and controversy. It is hard to expect satisfactory outcomes with time limits and manpower restrictions.

As a state branch, the prosecution cannot be entirely free from conflicts of interest in investigating high-profile members of the administration. Its integrity and judgment naturally would be questioned when probing officials of the ruling power or the prosecution, no matter how strictly and fairly the law is enforced. It is not easy to investigate allegations and press charges against officials who are connected to the higher echelon of authority that can directly influence the prosecution.

This is where the role of a special prosecutor comes in. If an independent team of counselors free from political connections takes the case, the public can more easily accept the result and any punitive action. Hence, public confidence in criminal law enforcement should improve.

In institutionalizing a special prosecutor system, we should find the right model for Korea because our political and social circumstances differ from those in the United States in many ways. The Constitutional Court already found the system justifiable according to our constitutional rights. But to minimize potential controversy, the authority to appoint the special prosecutor could be given to the Justice Department instead of the president.

Arbitrary restrictions on the scope, subjects, duration and confidentiality of investigations should be lifted to ensure freedom and thoroughness. It is best to establish an independent body to find and appoint the best legal counsel to lead the special prosecution to guarantee the transparency and fairness of the investigative process.

The debate on institutionalizing a special prosecutor is a warning and atonement for abuses of prosecutorial authority. But we would be better off without a special prosecutor if it is poorly administered. If a new law is made, it should be one that can ensure an irrefutable system.

Translation by the Korea JoongAng Daily staff.

*The author is a professor of Ajou University Law School.
By Lee Heon-hwan
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