[Column] Minister's Investigation Command and Prosecution Reform

Seokjin Choi, Head of the Legal Affairs Team

[Asia Economy Reporter Choi Seok-jin] The remarks made by Prosecutor General Yoon Seok-yeol at the National Assembly audit session have sparked heated political controversy.

The most problematic statements were “The Prosecutor General is not a subordinate of the Minister of Justice” and “Minister Chu’s investigative directives are illegal.”

Those who argue that Prosecutor General Yoon’s remarks are incorrect base their position on the fact that under the Government Organization Act, the Prosecutors’ Office belongs to the Ministry of Justice, and Article 8 of the Prosecutors’ Office Act grants the Minister of Justice general authority to direct and supervise prosecutors. Politicians have also attacked, saying, “Is the Prosecutor General refusing to be subject to democratic control?”

Furthermore, the Ministry of Justice previously stated regarding Minister Chu Mi-ae’s first exercise of investigative directive authority in the ‘media collusion’ case that “the investigative directive authority of the Minister as stipulated in Article 8 of the Prosecutors’ Office Act is a comprehensive supervisory power that includes not only directing specific cases but also excluding directives.”

On the other hand, those who support Prosecutor General Yoon’s statements argue that unlike heads of other administrative agencies under ministries, the Prosecutor General is at the ministerial level, which is why the title is ‘General’ rather than ‘Chief.’ They also claim that the proviso in Article 8 of the Prosecutors’ Office Act, which states “only the Prosecutor General shall direct and supervise specific cases,” limits the Minister’s authority and indicates that the relationship between the Minister and the Prosecutor General cannot be viewed as a typical superior-subordinate relationship.

Moreover, they argue that the investigative directive authority of the Minister of Justice under Article 8 pertains to decisions such as whether to request an arrest warrant or prosecute in specific cases, and that depriving the Prosecutor General’s investigative directive authority guaranteed under Article 12 of the same law exceeds the scope of investigative directives.

Both sides interpret the same legal provisions differently from their respective perspectives, making it difficult to hastily conclude that one side is entirely correct and the other wrong.

Ultimately, the final authoritative interpretation regarding the relationship and scope of authority between the Minister of Justice and the Prosecutor General lies with the Supreme Court, which holds the ultimate authority to interpret laws, or the Constitutional Court, which adjudicates disputes over authority between state agencies.

However, since Prosecutor General Yoon has expressed that he will not contest the current investigative directive through legal proceedings, the likelihood of an immediate legal judgment is low, and the controversy is expected to continue.

What is clear, however, is that whether one supports or opposes Prosecutor General Yoon’s statements, there is no room for dispute over the fundamental premise that “the political neutrality of the prosecution must be guaranteed.”

Therefore, when interpreting the provisions of the Government Organization Act or the Prosecutors’ Office Act, it is necessary to consider the so-called ‘legislative intent,’ which refers to the lawmaker’s intention hidden behind the apparent wording of the law.

Although not directly addressing this issue, there is a past case in which the Constitutional Court ruled unconstitutional and mentioned the political neutrality of the Prosecutor General, the Minister of Justice, and prosecutors.

In 1997, then-Prosecutor General Kim Ki-soo and high prosecutors filed a constitutional complaint against Article 12, Paragraph 4 of the amended Prosecutors’ Office Act, which prohibited the Prosecutor General from taking public office for two years after retirement. The Constitutional Court ruled that the provision was unconstitutional, stating that it infringed on the freedom of occupational choice and the right to hold public office.

The problematic amendment to the Prosecutors’ Office Act was introduced by a special committee on institutional reform composed of nine members from both ruling and opposition parties to prevent the Prosecutor General from being appointed as Minister of Justice after retirement. The rationale was that if the Prosecutor General, who should be politically neutral, could become Minister of Justice after their term, they might be influenced by the appointing authority, undermining political neutrality. Therefore, the possibility was completely blocked.

However, because the provision broadly prohibited appointment to public office, it was ultimately ruled unconstitutional for violating the principle of proportionality in restricting fundamental rights, especially the principle of minimal infringement. Nevertheless, the Constitutional Court explained the legislative purpose of the amended provision and the political neutrality of prosecutors as follows:

“The exercise of prosecutorial power is closely related to the operation of criminal justice, so it is crucial for prosecutors, as representatives of the public interest, to maintain political neutrality and exercise prosecutorial power fairly to uphold the rule of law and protect the freedoms and rights of the people.”

“Furthermore, since all prosecutors are obligated to obey their superiors’ orders under the principle of unity of prosecution, it is necessary for the Prosecutor General, as the head of the prosecution, to perform duties independently and fairly.”

“The legislative purpose of newly amending this provision was to ensure that the Prosecutor General performs duties fairly and exercises balanced prosecutorial power as a servant of the entire nation by maintaining political neutrality without being concerned about other positions during the term.”

Of course, the ‘principle of unity of prosecution’ disappeared after 2004, but what can be confirmed from this case is that although the provision was ruled unconstitutional, 23 years ago the National Assembly, through bipartisan agreement, enacted a law restricting the Prosecutor General from entering public office such as Minister of Justice after retirement to prevent political influence, and the Constitutional Court emphasized the need for the Prosecutor General’s independent performance of duties.

The amendment to the Prosecutors’ Office Act mentioned above was made during the administration of President Kim Young-sam. At that time, the Minister of Justice was former Supreme Court Justice Ahn Woo-man, a former judge like Minister Chu Mi-ae, and the head of the prosecution was Prosecutor General Kim Ki-soo.

In January 1997, the so-called ‘Hanbo scandal’ began with the bankruptcy of Hanbo Group, ranked 14th in the business world, and as preferential loans in the financial sector were revealed, it escalated into a power-related corruption case. The prosecution’s investigation targeted not only the president’s close aides but also President Kim Young-sam’s second son, Hyun-chul.

However, according to former prosecution officials at the time, neither President Kim Young-sam nor Minister Ahn Woo-man sent signals to Prosecutor General Kim Ki-soo to restrain investigations into the president’s aides or son. Of course, there was no investigative directive from the Minister either. Eventually, Hyun-chul was arrested in May of the same year on charges unrelated directly to the Hanbo scandal, such as receiving money from businesspeople who were high school alumni.

As mentioned earlier, the evaluation of whether Minister Chu’s investigative directive was a lawful exercise of authority can be viewed differently depending on individual perspectives until the Supreme Court or Constitutional Court issues an authoritative interpretation.

However, it is worth reconsidering that Minister Chu promoted former Seoul Southern District Prosecutor Park Soon-chul, who was entrusted with full authority over the investigation of the ‘Lime case’ involving politicians from both ruling and opposition parties, to the key position of head of the Seoul Southern District Prosecutors’ Office, and that Park resigned immediately after Minister Chu’s investigative directive, stating, “The Minister’s investigative directive is difficult to accept,” and “Politics has overwhelmed the prosecution.”

President Moon Jae-in, former Minister Cho Kuk, and Minister Chu Mi-ae have all consistently called for ‘prosecutorial reform,’ but is it only my illusion that the Ministry of Justice’s intervention in investigations seems to have regressed compared to 23 years ago during the first civilian government?