While the alleged fabrication and concealment of evidence by the National Intelligence Service (NIS) is gaining more weight in a case of Mr. Yu who is on trial, charged with violation of National Security Act (NSA), it is noticeable that few legislatures have started joining in support of the NIS. It is a normal practice of political propaganda machinery that legislatures from the ruling party play a role in guardians of the NIS on the grounds that the NIS is under the direct control of the President. Thus, if the critiques against the agents and the director of the NIS are found guilty by the court of law, it would not only be a serious challenge to the leadership of the President but also an adversarial effect to the upcoming local election scheduled in June. From this perspective, those guardians come into play.
A legislature, Mr. Hong Moon-jong, who earned his Phd in education at the Harvard University in the USA and who is serving his third time, holding a position of secretary-general of the Saenuri Party, attended a news programme on March 12. Honourable legislature Mr. Hong expressed his views saying, “The director of the NIS is an outstanding military personnel but might have mistaken in the spy operation. A spy can do anything for the purpose of national interest.” According to this account, then, the fabrication and concealment of evidence by the NIS against Mr. Yu is an act of a spy operation and it was done for national interests. He further holds his position to wait and see since confiscation and seizure has been carried out by the prosecutor’s office.
Another legislature, Mr. KIM Jin-tae, a former prosecutor who is serving for the first time, attended another news programme on the same day. Honourable legislature Mr. KIM argued, “The NIS agents might not be aware of the fabrication of the evidence and it was rather deceived.” However, he has failed to explain why the NIS told a lie to the public that it received the evidence through a ‘normal route’ even though it was obtained illegally by way through fabrication. Furthermore, a person who is believed to be an associate with the NIS and fabricated the document attempted to commit suicide and left the last will that the associate confessed to have received money from the NIS for operational costs for the fabrication of the document. In addition, Mr. Kim’s account is only supporting of the fact that the NIS has the absence of ability to cross check the authenticity of the document obtained.
Another legislature Mr. LEE Cheol-woo, a former NIS agent who is serving as a legislature for the second time, had an interview with one radio and expressed his views on this case. Honourable legislature Mr. Lee viewed, “the evidence in question is small and minor and shaking the NIS is something that the North Korea wishes to see.” However, his remark tends to deny the established principles in the criminal justice system and its function of justice delivery. In fact, the circumstances of how the confession was extracted from Mr. Yu’s sister by the NIS during an almost 6 month period of detention without access to lawyer were not taken into consideration when making his comment.
Not all legislatures from the Saenuri Party agree with the opinion expressed by the three legislatures above. Some are aware of the serious nature of this case and say that the director of the NIS should be held accountable. Setting aside the fact that this has become a sensitive political agenda and remarks are mainly made for that purposes, there is something important missing. Even though the political parties have their own political interests over the case of Mr. Yu, they should not undermine or disregard the firmly established norms and principles in the criminal justice system for their own interests.
The fact is that Mr. Yu is charged for espionage together with the violation of the NSA and the evidence firstly submitted was the sole confessional statement extracted by his sister while being detained for almost 6 months in deprivation of the right to legal counsel. At the first instance trial, Mr. Yu was freed from charges relating to the NSA. In the appeal court, other new documents that were submitted as evidence before court by the prosecutor’s office are now found to have been forged.
If the agents of the NIS are involved in fabrication of evidence and go free without being held accountable then the whole judiciary system in the country will come under serious question. If the prosecutors submitted the forged document as evidence without knowing, then the credibility of the investigatory power is in question. If it was done knowingly then the prosecutors shall not be freed from their criminal liability involved in the obstruction of justice. This again raises the question of the credibility of the prosecutorial system in the country. Under the current circumstance where at least one prosecutor dispatched from the prosecution office is serving at the NIS, it has a reasonable ground to believe that there is hardly a chance that neither the NIS nor prosecutors are aware of the fact of fabrication of document.
With regards to the concealment of evidence, if the prosecutors in this case exclude evidence which will benefit the defence of Mr. Yu, then, it again raises serious question on not only the abuse of power but also the serious nature of destroying justice. If this is the case, then, it is only portraying in itself that the prosecutors do not play a ‘public’ role but more or less play a great contribution to make up the case of espionage with ignoring principles of ‘legal certainty’ and ‘equality of arms’.
Despite this serious nature that those principles are ignored by the law enforcement officers themselves, if the role of legislatures does not thoroughly scrutinise or monitor actions to uphold the principles, it is not a mere relinquishment from their responsibilities as legislatures but more serious nature of act disseminating ideas that the principle is not for them but to ordinary citizens. And this is clear opposite to the values of the democracy, rule of law and human rights. Cynically speaking, it is not new problems that have just emerged from this case. In fact, it has become a common understanding that only those who have no power are punished. Historically, Korean legislatures in general contributed to the development of democracy in the country. At the same time, they have also obstructed their political interests either one way or another, the development of established norms and principles (for details: AHRC-STM-245-2013). Now, after at least 25 years of experience of procedural democracy, it is time to take a close look and distinguish toward substantial democracy those who respect and uphold the values and principles of democracy, rule of law and human rights and those who do not, regardless of their political line.
