[D-30 to the Launch of the Corruption Investigation Office] Will the Constitutional Court Put an End to the Controversy Over the Unconstitutionality of the Corruption Investigation Office Act?

The Chief Justice of the Constitutional Court, Yoo Nam-seok, along with other constitutional justices, is entering the grand bench of the Constitutional Court and taking their seats.
[Image source=Yonhap News]

[Asia Economy Reporter Choi Seok-jin] Currently, the Constitutional Court is conducting hearings on the constitutional complaints regarding the Corruption Investigation Office for High-ranking Officials (CIO) Act filed by former United Future Party lawmaker Kang Seok-jin in February, and a constitutional complaint and provisional injunction application filed last month by lawmaker Yoo Sang-beom of the same party.

If the Constitutional Court were to grant even a provisional injunction request to suspend the effect of the CIO Act before its effective date of July 15, the launch of the CIO would inevitably be halted until the Court delivers its final ruling on unconstitutionality. Similarly, if the Court recognizes the unconstitutionality of some provisions after the CIO has been launched, confusion would be unavoidable.

◆“The pros and cons debate is no longer meaningful”… “Eliminating unconstitutionality is the urgent task”= For over 20 years, domestic debates have continued over the introduction of the CIO. In particular, opponents of the CIO have used the unconstitutional elements inherent in the CIO as grounds to reject it.

However, at this point, with the law passed by the National Assembly representing the people and just one month before its enforcement, attention should be focused on identifying and improving the unconstitutional elements of the CIO Act.

Attorney A, a former prosecutor, said, “Prosecutors do not necessarily oppose the introduction of the CIO. The most important thing is that the law has been enacted, and whether there is controversy or not, since the law has passed the National Assembly, it should be properly operated.” He added, “That means it should be operated in accordance with the constitutional spirit and the ideals of the Criminal Procedure Act within the constitutional and criminal procedure system. At the very least, unconstitutional elements should be removed so that there are no controversies about violations of citizens’ fundamental rights or constitutional breaches during the operation of the CIO.”

◆Issues in constitutional system and infringement of equality rights= Opponents who claim the CIO is an unconstitutional organization point out that there is no constitutional basis for its establishment. In other words, under our legal system, institutions that make decisions affecting citizens’ rights or obligations must belong to one of the three branches?legislative, executive, or judicial?unless they are constitutional bodies established by the Constitution, such as the Board of Audit and Inspection or the National Election Commission. However, the CIO is not affiliated with the President, the Prime Minister, or any executive department, which is said to violate our legal system.

Of course, there are differing opinions. Hwang Un-ha, a member of the Democratic Party of Korea and former police officer, explained, “Formally, the CIO is recognized as directly under the President since the President appoints the CIO Chief. The Board of Audit and Inspection, a similar institution, is formally under the President but holds an independent status in its duties and exists within the system of separation of powers.”

Other criticisms include: ▲the violation of equality rights by distinguishing between cases where only investigation is possible and cases where investigation, prosecution, and maintenance of public prosecution are possible (Article 3); ▲defining crimes committed by family members of high-ranking officials as high-ranking official crimes and having the CIO investigate them (Article 2), which contradicts the constitutional principle of individual responsibility and corresponds to the prohibited collateral punishment system; ▲including retired high-ranking officials before the law’s enforcement as subjects of investigation (Article 2), violating the principle of prohibition of retroactive effect.

Additionally, ▲the provision requiring other investigative agencies (such as the prosecution) to comply when the CIO Chief requests transfer of a case (Article 24, Paragraph 1), and ▲the provision requiring other investigative agencies to immediately notify the CIO when they become aware of crimes by high-ranking officials (Article 24, Paragraph 2) have sparked controversy for placing the CIO, established by general law, above the Prosecutor General, who is constitutionally responsible for investigation and prosecution.

Attorney Lee Wan-gyu, a former prosecutor who recently published “2020 Commentary on Prosecutorial Reform Law,” stated in a media interview, “Once the CIO is established, a constitutional lawsuit can be filed even before an investigation begins. The most certain constitutional lawsuit is when the CIO starts an investigation. If a search and seizure occurs, one can immediately file a constitutional lawsuit and apply for a provisional suspension of duties.”

◆Are CIO prosecutors prosecutors?= Our Constitution grants the right to request warrants to prosecutors. The subordinate law, the Prosecutors’ Office Act, regulates prosecutors including the Prosecutor General.

The controversy over CIO prosecutors stipulated in the CIO Act arises from the fact that CIO prosecutors do not have the right to prosecute crimes committed by high-ranking officials or their families, unlike regular prosecutors, judges, or police officers of rank superintendent or higher.

Attorney Lee stated in his book, “The essential function of a prosecutor lies in the right to prosecute,” and “At least within the scope where only investigation is possible, CIO prosecutors cannot be considered prosecutors, but rather special judicial police officers dedicated to investigating specific targets.” This perspective aligns with the government’s ongoing adjustment of investigative authority, which focuses prosecutorial functions more on prosecution than investigation.

Because CIO prosecutors are fundamentally different from prosecutors recognized by the Constitution and the Prosecutors’ Office Act, there are concerns that CIO prosecutors requesting warrants may be unconstitutional.

◆Attention on timing and conclusion of Constitutional Court decision= It is currently unknown when the Constitutional Court will deliver a ruling on the cases filed before the law’s enforcement. If the CIO launches and investigations begin, and the investigation subjects file constitutional complaints, the Court may consolidate these with existing cases and issue a single ruling.

In any case, it seems unlikely that the Constitutional Court will declare the entire CIO Act simply unconstitutional. However, there is a possibility of a “constitutional discordance with legislative recommendation” decision, which points out unconstitutionality in some provisions and leaves specific legislative amendments to the National Assembly. In such a case, the Court is expected to recognize the law’s provisional effect until the legislative deadline it sets.

This content was produced with the assistance of AI translation services.