Due to increasing international concerns over corruption, well established systems in the developed countries often become a model for other countries to adopt. Meanwhile, much research has been made to look into the failure of eradication of corruption by nongovernmental organisations such as Transparency International. One recent research was done by the Political and Economic Risk Consultancy based in Hong Kong on March 21, 2012. In its report, the South Korea is ranked 11th out of 16 among countries in Asia. However, it is necessary to question why this country has so far failed to eradicate corruption despite its rapid economic growth and the development of democracy.
As the General Election is coming in April 2012, many cases relating to illegal funds to political parties and corruption have been reported. When such allegations are reported, it is the duty either of the Election Commission or Anti-Corruption and Civil Rights Commission to refer the allegations of cases to the law enforcement agencies for investigation. If a case involves in high ranking public officials, it is also dealt with the prosecution service for investigation. Under the country context, according to the law, the police investigation is directed by the prosecution service. It is therefore not an exaggeration to say that the prosecution service has the sole power of both investigation and prosecution.
Does the prosecution service investigate any suspect of corruption regardless of their status? The current system is that if a prosecutor is allegedly a suspect, then the investigation still remains at large to the prosecution service. In normal practice, a special investigation team consisting of higher ranking prosecutors normally lead such investigations in order to gain the confidence of the public in the investigation result. However, the case studies in the past below may provide how the prosecution service handles the allegation of corruption where higher judicial officials are involved.
In 1997, it was reported that 15 judges received money from 14 lawyers but the prosecutor made suspension of indictment due to the reason that it was irrelevant to the duty.
In 1999, it was reported that prosecutors received money from lawyers for introduction of clients. The investigation team set up by the Prosecutor General found out that 25 prosecutors indeed received money and as a result, 6 prosecutors resigned and 7 prosecutors received disciplinary action but they were no criminal responsibility.
In 2005, the media broadcasted a part of record tapes wiretapped by the Korean intelligence agency and its report. After the media broadcasting, one legislature revealed the contents of the voice files which were about the conversation between the deputy of Samsung group and CEO of Joongang daily newspaper. The conversation was the negotiation of the amount of money for high ranking prosecutors before Presidential election in 1997. The voice file had a specific amount, names of high ranking prosecutors including former Minister of Justice and various legislatures. It also revealed that it was a continued practice. However, no investigation was conducted. On the other hand, the legislature who revealed to the public was indicted by the prosecution service.
In 2006, it was reported that a businessman allegedly provided money or benefits to high ranking police officers, judges, high ranking prosecutors, lawyers, members of parliament and other businessmen. He was charged with violation of the Attorney-at-Law Act and other economic laws and convicted to 8 years. However, the details relating to corruption have not been known and investigation against those various high ranking public officials were not conducted despite the criticism.
In 2007, a whistle blower from Samsung company who was once a prosecutor made a statement of conscience that the Samsung company regularly provided money and various benefits to high ranking prosecutors including one who later became a Minister of Justice. When criticism arose, a special investigation team was formed. Action on seizure and confiscation of evidence by the prosecution service was delayed and during this time, it was alleged that the evidence was destroyed. But no action by the prosecution service was taken. Securing evidence failed and as a result, the case was closed.
In 2009, a nominee of Prosecutor General voluntarily gave up the position in the process of the parliamentary hearing to his appointment while a scandal involved in borrowing a large sum of money with unreasonably low interest rate from his acquaintance was exposed together with other allegations during the process. No investigation was conducted.
In 2010, it was reported by ‘PD Notebook‘ of Munhwa Broadcasting Corporation (MBC) that over 100 prosecutors including number of senior prosecutors had been received good treatment such as food, drinks, gifts, money and sex hosting and it was revealed by the person who provided treatment in April. While scandalous, an investigation team was set up and later reported its result. According to the report, most of prosecutors including incumbent and former prosecutors out of 160 indeed received good treatment but it was not in return for favours. The team only recommended disciplinary actions against 10, replacement against 7 and warning against 28 prosecutors. Later on, people mocked the prosecution service as ‘sponsored prosecutor’.
Each case invites people’s doubts and distrust on the judiciary as a whole. It is believed that this is only a tip of the iceberg and such malpractice is still at large but not yet exposed. Specifically, as long as the investigation power still remains at the prosecution service, only lenient disciplinary action has been applied and no punishment is made. Whereas, the whistle blowers or informers received threats or intimidation of withdrawal or deterrence of exposure and at the end they are convicted for criminal offences. For long years of exposure on such malpractice, people in the country now create general conception that a law applies differ based on the status of a person, so to say, between the rich and the poor and those who have power and those how have not. For this reason, civil society suggested reforms on adjustment on investigation power between the prosecution and the police.
With many suggestions by civil society, the Asian Human Rights Commission wishes to add that the issue of adjustment on investigatory power is not only the matter but that a broader approach should be made on judicial reforms in order to systematically secure the independence and competence of investigations regardless of the status. If the government wishes to eradicate corruption and gain public confidence, it is a prerequisite to amend its legal definition of corruption.
According to the article 2 (4) of Act on the Prevention of Corruption and the Establishment and Management of the Anti-Corruption and Citizens’ Rights Commission, which reads, “An act of any public official’s abusing his/her position or authority or violating Acts and subordinate statutes in connection with his/her duties to seek gains for himself or any third party”. One serious problem from this definition is that if the corrupt acts are not in connection with one’s duties, those acts of public officials are not punishable by the statute. Thereby, in most of the cases as narrated above, public officials were able to be free from criminal liability and therefore lead to impunity. Unless the legal definition is amended, it appears clear that the corruption conducts or acts will continue.
The current discussion on adjustment on investigatory power between the prosecution service and the police should not limit itself but expand the approach to the criminal justice system as a whole including the amendment of legal definition of corruption in the rule of law and democratic society. Comparative studies on different anti-corruption commissions in different countries may give a good lesson that the government of South Korea can learn if a genuine will to eradicate corruption in the country exists. Otherwise, regardless of who takes investigation power, the area of corruption will remain sacred from investigation and the corruption practices continue to distort the criminal justice procedure. As the result, the investigation is made depending on the status of person and the poor or ordinary person will only get affected from the miscarriage of justice.
