Korean President Moon’s Last Reform

A self-pardoning move?

By: Shim Jae Hoon

Just a few days before he stepped down from office last month, South Korea’s outgoing President Moon Jae-in hurriedly affixed his signature to a newly revised law that stripped the prosecution’s power to investigate cases of corruption and abuse of power by politicians.

It was a well-taken move as far as timing was concerned, as quite a few of his parliamentary allies were becoming agitated, saying publicly that unless it was quickly formalized, some 20 of them stood a good chance of facing the unforgiving eye of prosecutors.

Their agitation was understandable. Under the newly revised law that goes into force in September, categories that permitted direct prosecution investigation will shrink from six to two, giving wider power to the national police. The six areas specifically described corruption of government officials and politicians, election law violations, and crimes related to defense industry. Under the new law, however, areas authorizing direct prosecution investigation have shrunken to just two, vaguely described as “corruption” and “economic crimes,” without specifying by whom.

This means that major crimes associated with public office holders will now move to the National Police, which many politicians believe are more comfortable or controllable to deal with than prosecution.

To a large segment of public opinion, Moon’s demand for prosecution “reform” made sense. South Korea is on the road to becoming progressively open and democratic, so it’s time to march in step with Europe, the US, and Japan in better protecting human rights and better respecting a fair judicial process. South Korea’s judicial institutions – adopted wholesale from a prewar Japanese system which in turn had rested on prewar German civil law tradition – have long outlived their propriety. Today, prosecutors are elected in the US, while in Germany and Japan they no longer have overbearing power. In short, Korea’s prototype model fails to accord with the country’s increasingly democratic trends.

As a lawyer and former pro-democracy demonstrator who has a first-hand brush with the law – he spent a night in jail for illegal demonstration – Moon is understandably passionate about reform, denouncing prosecutors as government stooges. That happens to be an old-time accusation as a succession of past governments have found it useful to keep it that way. His call for depoliticizing the prosecution and keeping it independent from government power has won wide public support in view of much suffering caused under the military regime.

In recent years, a succession of governments has had to pay compensations for wrongly convicting political dissent as crimes. For all that, demands for prosecution reform have led to little concrete result, because each democratically elected government has also found it convenient and politically expedient to retain the constitution that allows the president to appoint the prosecution general.

Moon’s own campaign for reform has found little repercussions because it has lacked concrete proposals and visions leading to substantive debate. It is little wonder then that, so far little or no progress has been made on the reform agenda. Despite his last-minute approval of the change in the Prosecution Act, Moon himself undertook few initiatives for concrete change, much less triggering significant debate as to how prosecution should be made independent.

As shown by responses within his own party, prosecution reform is mainly seen as a last-minute self-pardoning move, mainly because Moon himself has failed to sustain the tension on his reform efforts.

Credibility on reform has also been undermined by public perceptions that the president, during his tenure, opened himself to media accusations of breaking or ignoring law in his administration. Moon, for instance, stands accused of excluding his allies from the rule of law, resulting in the resignation of his own hand-picked prosecutor general, Yoon Suk-yeol, who on May 10 ironically became the next president, taking over the government.

During his five-year leadership, Moon faced accusations of illegally helping to elect a friend as a provincial governor. His staff – presumably on his order – have faced criticisms for forcing executives of state-run companies to resign so their places can be filled by his own supporters; he has been criticized for failing to investigate his party leaders facing corruption charges, including his party’s presidential candidate.

Moon’s personal fealty to democracy and rule of law has been questioned following his refusal to stop his party from trying to legislate laws to challenge press freedom with punitive financial damages. These records have prompted the opposition Korea People’s Party to decry his prosecution reform program as “an attempt at pardoning himself under the cover of reform.”

At issue is not only criticism over the new prosecution act itself, which the opposition Korea People’s Party has termed an attempt to “eviscerate” prosecution power. The ruling Democratic Party has faced a nationwide condemnation for its “unparliamentary” manner in rushing the bill through the legislative floor.

Defying opposition from the country’s entire judiciary institution against the reform bill – most of the nation’s lawyers, judges, and prosecutors have demanded that the bill be withdrawn – the majority Democratic Party rushed the bill through the subcommittee in the dead of night on May 3 without opposition legislators given a chance to debate. With majority party legislators blocking the debate, and asking one of its members to change his status from Democrat to “independent” to satisfy the subcommittee’s quorum rule, the bill was declared passed in just six minutes.

This railroading of the bill has so shocked the nation that it subsequently contributed to a sweeping defeat of Democratic Party in the ensuing local and gubernatorial elections a few weeks later.

It was a strangely aberrant behavior for a party and government that came to power on the back of young pro-democracy activists. The Democratic Party leadership today consists of leftwing nationalist student firebrands who fought against the army-backed “development-mission for “reforming the country in the next 20 years in power,” has deservedly received the opprobrium of being a “Khomeini-like” group intent on doing anything to stay in power. Violently opposed to globalization and the US-led market-based global order, dozens have signed statements calling for US withdrawal and peace talks with nuclear-armed North Korea.

The only course open for launching real prosecution reform under the new government is to gain a parliamentary majority in the next election slated for 2024, according to its leaders. Until then, the new Prosecution Act will determine whether it can withstand the real challenge of dealing with endemic political corruption.

During the period of campaign against the military rule, South Korea’s democracy icon Kim Dae Jung used to say that the tree of democracy grows on blood. Looking at the generation of his supporters who run government today, he might as well have added that it also grew on efforts at fighting the temptation to ape the oppressors.