[Full Text] Minbyun Criticizes 'Choo Mi-ae Indictment Sealed'... "Legal and Political Responsibility if Accountability Revealed"

Minbyun, Commentary on 'Indictment Controversy Position and Proposal'
"A Situation That Inevitably Reads as a Political Response"

Minister of Justice Choo Mi-ae is speaking at a press conference held at the Government Complex Gwacheon on the afternoon of the 11th.
[Image source=Yonhap News]

[Asia Economy Reporter Han Seung-gon] The Lawyers for a Democratic Society (Minbyun) publicly criticized the Ministry of Justice for refusing the National Assembly's demand to submit the full indictment related to the Blue House election interference case, stating that "the Ministry of Justice has provided grounds for political controversy."

On the 12th, Minbyun issued a statement titled "Position and Proposal Regarding the Controversy Over Submission of the Indictment to the National Assembly" under the name of Chairman Kim Ho-cheol, saying, "Reform means correcting flawed systems and practices, so if reform is to be pursued, its necessity must be reasonably presented and social consensus must be obtained through persuasion."

It added, "The Ministry of Justice responded to the demand for submission of the indictment in a situation where prior social discussion was insufficient by submitting only the summary of the indictment, and when controversy arose, it later stated that this was a decision for institutional improvement. This inevitably became a situation that could be interpreted as a political response to a specific issue."

Minister of Justice Choo Mi-ae (left) Prosecutor General Yoon Seok-youl (right)

Minbyun particularly questioned, "Did the Ministry of Justice properly consider the gravity of the case when deciding not to submit the indictment?" emphasizing, "This case involves allegations that the Blue House and government agencies interfered in local government elections, and the prosecution investigated and indicted the matter."

It further stressed, "The institutional issues regarding the method of submitting the indictment and the indicted case itself need to be discussed separately. The allegations that the Blue House and government officials interfered in the election are serious in themselves, so the truth should be clarified during the trial process, and if responsibility is revealed based on the results, legal and political accountability must be pursued."

The following is the full text of Minbyun's statement.

Position and Proposal Regarding the Controversy Over Submission of the Indictment to the National Assembly

1. On February 4, 2020, regarding the 'Ulsan Mayor and Others Non-Detention Indictment Case,' the Ministry of Justice submitted only the summary of the indictment to the National Assembly in response to its demand for the full indictment. The legitimacy of this decision by the Ministry of Justice has been actively debated in public forums for about a week, during which the full indictment was also disclosed through the media. Our organization recognizes the seriousness of this situation and suggests reviewing the matter from a principled perspective, as the controversy may continue.

2. On the institutional aspect of submitting indictments to the National Assembly

Historically, the National Assembly has requested related materials from government ministries based on the National Assembly Act and the Act on Testimony, Inspection, and Records at the National Assembly (hereinafter 'National Assembly Testimony and Inspection Act'), and government ministries have complied. Although this practice has continued for a long time, it is difficult to say it strictly followed the procedures stipulated by the National Assembly Act. Article 128 of the National Assembly Act allows the submission of reports, documents, and photographic or video materials related directly to agenda deliberations, audits, or investigations, upon resolution by the plenary session, committee, or subcommittee, thus imposing limitations on purpose, subject, and target. The National Assembly Testimony and Inspection Act also limits its application to reports and document submissions related to agenda deliberations, audits, or investigations. Currently, it is difficult to say these purposes and procedures are properly functioning. Conversely, when a member of the National Assembly unilaterally requests materials unrelated directly to audits, investigations, or agenda deliberations, refusal does not necessarily constitute a violation of the National Assembly Act or the National Assembly Testimony and Inspection Act.

Furthermore, the act of the Ministry of Justice providing indictments upon the National Assembly's request requires constitutional evaluation. This involves a conflict between the constitutional rights of the defendant to guarantee defense and a fair trial and the constitutional authority of the National Assembly's oversight function, which must be harmoniously interpreted. Particularly, the prosecutor's indictment is a document containing one party's opinion in criminal proceedings, which must be re-evaluated through legal assessment of evidence supporting the indictment and the defendant's rebuttal during the trial. If the indictment's contents, based on evidence without secured admissibility, are accepted as established facts beyond the principle of indictment exclusivity, the defendant's defense rights may be severely infringed. Past political security cases have shown precedents of such human rights violations. On the other hand, for certain public matters of high national interest, such as corruption involving conglomerates and power, there may be a need to provide the indictment to the National Assembly for oversight and public discourse. However, in such cases, issues of individual privacy and personal information protection must also be considered. For these reasons, countries like Germany and the United States operate their systems based on different perspectives and standards according to their history and culture. Ultimately, the submission of indictments prepared by prosecutors to the National Assembly should be discussed considering the defendant's defense rights, privacy and personal information protection rights, the right to a fair trial, and the functions of the National Assembly. If deemed legitimate, the timing, scope, and procedures must be organized through sufficient social consensus.

However, current laws have several shortcomings in regulating the submission of indictments to the National Assembly, considering the nature of indictments. For example, Article 47 of the Criminal Procedure Act (Non-disclosure of Litigation Documents) stipulates that "litigation documents shall not be disclosed before the commencement of the trial unless there is a public interest or other substantial reason," which conflicts in intent with the current National Assembly Testimony and Inspection Act. It is also questionable whether investigation records beyond the indictment are subject to submission. Detailed standards on who (Ministry of Justice or court), when (timing of submission), for which cases, and to what extent the indictment or its summary can be submitted to the National Assembly need to be established. More serious human rights and legal reviews and improvements at the government and National Assembly levels are necessary. In this regard, the points raised by the Ministry of Justice themselves warrant significant social discussion.

3. On the Ministry of Justice's judgment regarding a specific case

Despite these circumstances, in reality, the issue of the Ministry of Justice's submission of the indictment has become a subject of political controversy rather than an institutional improvement for human rights. For various reasons, the Ministry of Justice is not free from criticism that it caused this situation given the gravity of the matter.

First, from a procedural perspective. Reform means correcting flawed systems and practices, so if reform is to be pursued, its necessity must be reasonably presented and social consensus obtained through persuasion. The Ministry of Justice responded to the demand for submission of the indictment in a situation where prior social discussion was insufficient and conflicts between laws and Ministry of Justice regulations were unresolved by submitting only the summary of the indictment. When controversy arose, it later stated that this was a decision for institutional improvement. This inevitably became a situation that could be interpreted as a political response to a specific issue.

Second, it is questionable whether the Ministry of Justice properly considered the gravity of the case when deciding not to submit the indictment. This case involves allegations that the Blue House and government agencies interfered in local government elections, and the prosecution investigated and indicted the matter. While the government can be a subject of reform in protecting and promoting citizens' human rights, it is always subject to control and oversight by the people because various power institutions may restrict citizens' rights. This case involves the Blue House and government officials as defendants, and the nature of the case concerns allegations that power institutions interfered in the public domain of elections, not private life. The Ministry of Justice, a government agency to which the defendant belongs, politicized the issue by raising problems with the method of submitting the indictment and emphasizing the 'universal human rights of criminal defendants.' This led to the defense rights issue, which should be treated seriously as a human rights matter, being consumed as a political controversy. Suspicions grew that the government did not want the issue disclosed ahead of the general election, and as a result, the full indictment was disclosed through certain media outlets. The government needs to listen to criticism that it treated the gravity of the case and its deep responsibility to the people lightly.

4. The need for social discussion on institutional improvement of indictment submission and the indicted case itself

The scope of disclosure of a defendant's indictment is an issue that requires continuous discussion and legislative and institutional improvement. If the current law is interpreted to require immediate and uniform submission of the indictment itself upon the National Assembly's request regardless of the case's nature, such interpretation should be improved from the constitutional perspective of the defendant's defense rights and the right to a fair trial. At a press briefing on February 11, Minister of Justice Choo Mi-ae announced that the Ministry of Justice would revise the standards for indictment disclosure. For important cases where disclosure is necessary, the full indictment will be disclosed after the start of a public trial following the resolution of a neutral committee such as the Criminal Case Disclosure Review Committee, and the full indictment will also be submitted to the National Assembly after the public trial begins. Our organization will actively provide opinions so that these standards can be established through social discussion, balancing the defendant's defense rights, the right to a fair trial, the National Assembly's oversight authority, and the public's right to know.

Meanwhile, the institutional issues regarding the method of submitting indictments and the indicted case itself need to be discussed separately. The allegations that the Blue House and government officials interfered in the election are serious in themselves. While it is appropriate to refrain from making definitive judgments based solely on the indictment at the time of indictment, the truth should be clarified during the trial process, and if responsibility is revealed based on the results, legal and political accountability must be pursued. Regardless of whether the disclosure of the indictment itself is desirable, the government must properly inform the public about the matter and must not engage in acts that could be perceived as concealing or interfering with the investigation or trial process.

Establishing universal principles should come first in any matter, and above all, it should be considered from the perspective of the sovereign people. In this regard, we propose that more serious social discussion be conducted from the perspective of constitutional spirit regarding this matter.

February 12, 2020

Lawyers for a Democratic Society

Chairman Kim Ho-cheol

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