Reprisals against lawyers defending the right of the accused are a historical reality of past military and authoritarian regime in South Korea. Those who received either disciplinary punishment or imprisonment, and provided legal advice at that time later earned the label “human rights lawyers”.
As often witnessed in developing countries under military and authoritarian regimes, the public institutions in South Korea were also controlled by the respective executive branches of the time. The concepts of separation of powers, democracy, rule of law, and human rights, which are taken for granted these days, used to be interpreted in a way to serve the executive. The judiciary more or less existed in order to deliver an executive order in a formalistic way. Completely controlled by the executive, the prosecutor’s office was there to prosecute dissenters. Thus, the law was there to serve the rulers, not to protect the people. The role of the public institutions was to intimidate or restrict the rights of people.
Among others, the successful nationwide democracy movement in 1987 triggered the constitutional amendment guaranteeing direct election for the president as well as an independent Constitutional Court to determine the constitutionality of any legislation adopted by the national assembly members. This was the result of reflection regarding the past fear of failure of the independence of the judiciary. However, the discourse on transition for democracy did not go into deeper problems caused by other institutions, such as the police and the prosecutor’s office, that deal with citizens in their daily routine operations.
In a case where the National Intelligence Service sued the current Mayor of Seoul for compensation for damages on defamation, in 2009 the court took the view that the entitlement of a government institution shall be narrowly interpreted. Despite this, a series of lawsuits asking for compensation were still filed, regardless of their result, a tactic known in the US as “strategic lawsuit against public participation”.
On November 3, the Seoul Central District Prosecutor’s Office applied to the Korean Bar Association (KBA) for initiating disciplinary actions against 7 lawyers, all of whom are members of MINBYUN-Lawyers for a Democratic Society, a prominent lawyers’ group, on the reason of being demeaning in their activities of advocacy. The prosecutor’s office recommended that the KBA take administrative disciplinary action against two of the accused: Ms. Kim In-sook, for advising a client to exercise the right to remain silent; and Mr. Jang Kyung-wook, who also advised a client charged with espionage to remain silent during interrogation. According to the prosecutor’s office, the remaining lawyers, Mr. Kwon Young-guk, Ms. Kim You-jeong, Mr. Kim Tae-wook, Mr. Song Young-seop and Mr. Lee Duk-woo, were indicted for alleged obstruction of official duties and their cases are currently pending in court.
Many commentators criticised the prosecutor’s initiatives as an attempt to undermine not only the role of lawyers, but also the basic principle of criminal law. Similarly, it has been denounced as a restriction on lawyers’ ability to properly advise their clients in the interrogation process. Other allegations are that it is a targeted reprisal, since those lawyers representing clients charged with espionage have recently won their cases, and the National Intelligent Agents was exposed for fabricated evidence submitted to the court.
The media interview on November 7 may provide more details for the reason why the prosecutor’s office applied for disciplinary action. In the interview, the prosecutor insisted that a “couple of cases were recently reported that the abuse of those lawyers went too far in the process of interrogation as well as court proceedings.” In a nutshell, lawyers’ advice to their client to remain silent is an act of “going too far”, thus hampering investigation, and it could result in disciplinary action by the Korean Bar Association at the request of the prosecutor’s office.
The media interview also indicates the mindset of the role of prosecutor in the process of interrogation. The intended purpose of investigation is to secure evidence in order to prove one’s criminal liability before an independent institution, the court. However, the interview indicates that the interrogation still focus almost solely on getting a confession from the accused and thus, the defence lawyers’ advice to the accused to remain silence obstructs the interrogation process to get that confession.
In other words, the right to remain silent is one of the rights of the accused, but a lawyer cannot advise their client to actually use the right. Lawyers who advise a client to exercise the right are liable to be sanctioned by the Korean Bar. The practical effect of this is making the right to remain silent a law that can only be found in books or classrooms, but not in practice; it deprives the defendant of knowledge of the law, and prevents them from exercising their right at all.
Consequently, the role of the prosecutor appears to be targeting the defence lawyers, not improving interrogation techniques and the ways to gather evidence to prove criminal liability. Targeting defence lawyers is not relevant to the immediate improvement of the investigation methodology; instead, departing from a systems that puts undue focus on collecting confession and working to improve the how and why of interrogation procedure should be the priority of the justice system.
Such attacks on lawyers must stop as even the perception by the international community that they are an abuse of public position to conduct systemic reprisals or personal vendettas against lawyers can undermine the justice system as a whole. These sort of reprisals are so flagrant, and so unbecoming of civilised society, that they may trigger public outrage like that which occurred as a result of the abuse during the military or authoritarian regimes. South Korea needs to continue to move forward, but attacks like these are a move backwards; a civilised society must respond to this sort of uncivilised practice.
