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The National Assembly passes an amendment to the Act on the Establishment and Operation of the Corruption Investigation Office for High-ranking Officials (CIO Act) on Dec. 10. (Yonhap News)

An amendment to the Act on the Establishment and Operation of the Corruption Investigation Office for High-ranking Officials (CIO Act) passed the hurdle of the National Assembly’s regular session on Dec. 10, 11 months after the legislation was enacted on Jan. 14. Having evaded the opposition’s veto, the administration and ruling Democratic Party are hurriedly preparing to launch the CIO within the year.

The creation of a CIO was first demanded by People’s Solidarity for Participatory Democracy (PSPD) in 1996 as a step toward prosecutorial reform, with Presidents Kim Dae-jung and Roh Moo-hyun both sharing related pledges. In that sense, this achievement was 24 years in the making.

But before we applaud this historical progress, there are a number of apprehensions that remain to be cleared away. The first of them concerns the inherent risks associated with the CIO as an institution of power. The CIO is an institution under presidential supervision that is tasked with investigating the prosecutors and judiciary, both of which require high levels of neutrality and independence. The office holds authority both to investigate and to indict. It is also tasked with investigating job-related crimes such as abuse of authority and dereliction of duty, which are less obviously connected with “corruption among high-ranking officials” per se. It’s difficult to shake concerns that under a different administration, the CIO itself could become a tool for fatally undermining the separation of powers that is such a core part of democracy.

A second concern is that it conflicts with the larger drift of prosecutorial reform. In acquiring both investigation and indictment authority as unelected figures, the prosecutors have been able to exercise unchecked authority by means of overzealous (or half-hearted) investigations and arbitrary indictments. This is why the Justice-Prosecution Reform Committee early on in the Moon Jae-in administration viewed the separation of investigation and indictment powers as a major premise of prosecutorial reform.

If anything, the prosecutors’ powers to directly investigate cases involving deeply entrenched vices have now been expanded, and like the prosecutors themselves, the CIO established to reform the prosecutors has been equipped with both investigation and indictment powers. The larger premise of prosecutorial reform has fallen by the wayside, and we have now ended up with not one but two institutions of power that possess both investigation and indictment authority.

Furthermore, the prosecutors’ authority to direct police investigations has also been abolished through adjustments to the police and prosecutors’ investigation authority as part of the prosecutorial reform push. As of 2021, the police will possess independent authority to conduct and conclude investigations. With three independent investigation bodies now, it will be fortunate indeed if a suitable mixture of checks and balances can take shape naturally among them from the early stages of this institutional change. But there’s also an increased risk of human rights violations by indiscriminate investigations as things escalate into a power battle and competition for supremacy.

A final concern has to do with the damage done to the core principles of democracy. Under the 21st National Assembly, the Democratic Party holds an overwhelming majority of seats at nearly 180, effectively neutralizing the opposition party as a countervailing force. But it’s a different issue entirely when they’re basically closing the door to cooperation with the opposition amid the establishment of a power institution that exercises criminal punishment powers on behalf of the state — especially one that stands to threaten the democratic principle of separation of powers.

Even if the People Power Party (PPP) handed it the justification it needed with its grasping antics, it remains true that the Democratic Party’s unilateral actions — in defiance of its initial promise to ensure the opposition an opportunity to exercise veto powers — go against the principles of consensus democracy.

In any case, the CIO Act has now been amended. The ruling authorities have finished laying the groundwork for going ahead with the CIO’s establishment regardless of the opposition party’s objections. It is now up to the administration and ruling party to answer the concerns laid out here. To begin with, the inaugural CIO chairperson will need to be someone even the opposition can accept, thereby proving that the concerns about neutrality are unfounded.

If the CIO faces questions of bias early on after all the trouble that went into establishing it, we could end up seeing wasteful political battles over its future investigation findings. This will lead to the public taking sides in terms of whom they trust, with some backing the prosecutors and others backing the CIO. This in turn could end up breeding greater distrust in the national criminal justice system as a whole.

Another important question concerns what sort of controls can be put in place to prevent the CIO from turning into an institution controlling the prosecutors and judiciary. As an organization under the president, the CIO has basically sidestepped all sorts of control procedures that exist within the executive branch. An initial provision in the law that basically commanded the CIO’s establishment based on bipartisan consensus by guaranteeing the opposition strong veto powers was more or less the only measure in place (and a powerful one) to ensure neutrality; the ruling party eliminated this by pushing through the law’s amendment on the grounds that the CIO’s establishment deadline had been missed by a few months.

Most of all, the administration and ruling party will need to give a clear explanation as to whether the CIO’s establishment represents the culmination of prosecutorial reforms, or whether they plan to embark on a “season two” of reforms that use it as a basis for fully separating investigation and indictment powers. The only way we can come to any objective conclusions about the administration and ruling party’s seemingly immoderate efforts to establish the CIO is after we have a sense of the medium- to long-term road map for prosecutorial reforms, and where we stand on that now. It isn’t a good thing in and of itself to have a new power institution in place in the form of the CIO, and the reorganization of state criminal punishment powers has too great an impact on the human rights situation for us to simply trust in the “good intentions” of those in power.

By Noh Hyun-woong, staff reporter

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