[Column] Prosecutorial reform and S. Korean democracy

Posted on : 2020-12-09 18:07 KST Modified on : 2020-12-09 18:07 KST
Checking the authority of prosecutors is part of a larger process of elevating S. Korea’s democracy
Shin Jin-wook
Shin Jin-wook

By Shin Jin-wook, professor of sociology Chung-Ang University

We are witnessing a battle between the justice minister and the prosecutor general, two officials responsible for upholding democracy and the rule of law in South Korea. The judgment of who is in the right and wrong will depend on which side is seen as subject to greatest controls on their authority. But many people seem to have mixed feelings about the situation. As with the scandal surrounding former Justice Minister Cho Kuk last year, it is not a clear-cut case of “good” and “bad,” but a mixture of conflicting aspects.

S. Korea’s incomplete democratization

Through the democratization of 1987, South Korea achieved a low level of democracy in terms of electoral democracy, competitive democracy, and majority-rule democracy. But a higher level of democracy has not been so easily accomplished. The realization of democracy is only possible with guarantees not just on elections and majority rule, but also on comprehensive basic rights for citizens, checks on elected officials, and political fairness on the part of unelected officials. This “second democratic revolution” remains incomplete.

The nine years under the presidencies of Lee Myung-bak and Park Geun-hye — both of whom are now in prison — were less brutal than a dictatorship, but they also revealed serious defects in the country’s democracy, a tougher nut to crack. The people in power flagrantly attacked democracy and the rule of law, abusing political authority in the name of the “people” and abusing the power of state institutions such as the prosecutors, the National Intelligence Service (NIS), and the Board of Audit and Inspection (BAI) in the name of the law.

The power of prosecutors reached its zenith during the Lee administration. Where the military and intelligence institutions had wielded brutal tactics of torture and slaughter during dictatorships, the prosecutors of the post-democratization era deployed a new method of control under the guise of the rule of law: branding administration opponents as criminals and making them into objects of mockery, while dragging ordinary people to court as a means of intimidation.

The mission of the Moon administration

That long era came to an abrupt and dramatic end. Candlelight demonstrations of more than 10 million people, 80% support for Park’s impeachment, and the final decision by the Constitutional Court to remove the president — all of these inscribed in history the message that the false democracy deployed so blatantly by the Lee and Park administrations would no longer be tolerated in our society. All officials must be subject to the law and the wishes of the public, elected and unelected alike. That was the lesson of the impeachment.

Emerging from this historical backdrop, the Moon Jae-in administration had the mission of establishing democracy so that no authorities would be able to lord over the law and public. One important task to that end was prosecutorial reform: ensuring that ahead of their role in upholding the law, the prosecutors must also be subject to the law. At the same time, another task was for the Moon administration and ruling Democratic Party to adopt a moderate and tolerant approach in exercising the authority the public had entrusted them with.

Yet the Moon administration has had difficulty performing both tasks simultaneously in two regards. First, the administration ironically allowed the prosecutors to become too powerful in order to bring to light the damage done to democracy by previous administrations. Not only did the prosecutors elevate their own standing through the process of impeachment and “eradicating deep-rooted vices,” but they also gained political capital by rebranding themselves as upholders of justice.

The problems present in prosecutorial reform

The second problem is a mirror image of the Roh Moo-hyun administration’s prosecutorial reform campaign. Roh sought to reform the prosecutors by taking their weapons away in exchange for laying down his own arms as president. But his appeal drew derision even from rank-and-file prosecutors, and he himself would become a victim of prosecutorial powers after leaving office. In contrast, the Moon administration has sought to achieve reforms by maximizing the legitimate authority of elected officials. The problem has to do with the very narrow space in between “legitimate” authority and “maximum” authority.

Overcoming the onslaught by prosecutors looking to hold on to their vested interests and implementing reforms will require the use of maximum authority. But if it crosses the line of what a majority of South Koreans consider legitimate, the Moon administration will be remembered as having betrayed the “candlelight spirit” that brought it into power. Will it let the opportunity for prosecutorial reforms slip? Will it forfeit its own legitimacy as an administration? Can it succeed with both?

A worst-case scenario would be a head-on collision between the prosecutor general and the president that leaves the former looking like a righteous martyr and the Moon administration looking like high-handed rulers betraying the candlelight spirit. A best-case scenario would involve achieving checks on unelected power with a show of inclusiveness and restraint by elected officials.

In this regard, the current situation is not solely about prosecutorial reforms. In a broader sense, prosecutorial reforms need to be situated as a central part of a more general reform process aimed at elevating South Korean democracy to a higher plateau. Where the process to date has been one of clashing swords, we now need to see the arrival of a new process characterized by gentle yet firm democratic political power.

Please direct comments or questions to [english@hani.co.kr]

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