[Reporter’s Note] President Moon Jae-in Should Consider Public Sentiment in Appointing the Prosecutor General

Seokjin Choi (Chief Legal Reporter)

[Asia Economy, Seokjin Choi] The results of the April 7 by-elections were shocking.

It was not simply a defeat for the ruling party. In the mayoral by-elections for major metropolitan cities such as Seoul and Busan, the Democratic Party of Korea failed to win against the opposition in any of Seoul’s 25 districts or Busan’s 16 districts.

This was not only because voters who originally supported the opposition or were moderates shifted toward the opposition, but also because a significant portion of the ruling party’s supporters turned their backs on the party.

The shock was even greater because the ruling party had secured an overwhelming majority of 180 seats in the general election held just one year earlier.

Upon close examination, the decisive causes were the government’s failure in real estate policy and issues surrounding COVID-19 vaccines. Additionally, the fact that the by-elections themselves were triggered by sexual misconduct scandals involving ruling party local government heads also played a role.

Politically, the public’s fatigue and disappointment stemming from the prolonged controversy over former Justice Minister Cho Kuk, as well as the subsequent efforts by former Justice Minister Choo Mi-ae to oust former Prosecutor General Yoon Seok-youl, had a significant impact.

In particular, President Moon Jae-in, a lawyer by training, disappointed the public by appearing to be mired in factional logic-mentioning a “debt of the heart” to former Minister Cho-rather than focusing on the facts of the case and the strict application of the law. The ruling party and the Ministry of Justice blindly criticized the investigation into Cho and targeted Yoon, while the President allowed this to continue unchecked, which greatly disappointed the public.

Yoon Seok-youl, who had been at the forefront of the Moon administration’s campaign to root out corruption and had enjoyed a meteoric rise, began to lose President Moon’s trust over the investigation into Cho Kuk.

In a recently published book about Yoon, it is recounted that he told a college classmate the reason he began investigating Cho Kuk was “to save the President” and because “the matter was so serious that leaving it unattended would inflict massive damage on the administration.”

In contrast, President Moon and the ruling party at the time treated the prosecution’s investigation into Cho, who was considered “one of their own,” as an act of betrayal.

However, looking back more than a year later, Cho Kuk, who had strongly protested the investigation and insisted that “everything would be revealed in court,” ended up exercising his right to remain silent and refusing to testify in court, failing to prove his or his family’s innocence. His wife, Chung Kyung-shim, a professor at Dongyang University, was found guilty in the first trial, sentenced to prison, and taken into custody. Their cousin, Cho Beom-dong, was also sentenced to prison in both the first and appellate trials.

This has to some extent demonstrated that Yoon’s judgment-that judicial action was needed regarding the Cho family’s corruption-was neither completely misguided nor an unreasonable decision based on ulterior motives.

Choo Mi-ae, who had held an emergency press conference with great fanfare to accuse Yoon of “illegally surveilling judges” and labeled him a “notorious criminal,” ultimately lost a series of court cases and was replaced. Yet, she has shown little sense of responsibility for having sought Yoon’s disciplinary action and is now focused on pursuing a new political path.

The Ministry of Justice failed to submit additional evidence to the court to support the disciplinary charges against Yoon, and did not even appoint a lawyer for the main lawsuit. Only after media reports surfaced that the court had issued an order to clarify its position did the ministry hastily reappoint the lawyers who had handled the injunction case. This is the very definition of a “hit-and-run” approach.

Although legislation was enacted to drastically reduce the prosecution’s investigative powers and transfer most cases to the police under the banner of prosecution reform, official statistics-such as the number of cases referred by the police and the number of indictments by the prosecution-show that, even considering the early stage of the new system, the ability to respond to corruption crimes has significantly declined.

After the “LH scandal” broke out and negative public opinion formed regarding the police’s independent investigative capabilities, it was the ruling party-who had previously called for minimizing the prosecution’s direct investigative authority-that began to demand “active prosecution investigations” or the introduction of a “special prosecutor,” a classic case of contradiction.

The Corruption Investigation Office for High-ranking Officials (CIO), introduced as another prosecution reform tool despite concerns that it would become a “power above power,” has been transporting suspects in official vehicles, conducting interviews without even writing investigation reports, and then sending the cases to the prosecution-while still insisting that “we will handle the indictments ourselves.”

After the adjustment of investigative powers between the police and prosecution and the creation of the CIO, first-term ruling party lawmakers who had boasted about “completely stripping the prosecution of investigative authority” (“Geomsuwanbak”) quietly backed down as the mood in the party soured ahead of the election, and after the crushing defeat, they have become completely silent.

If “Geomsuwanbak” was truly the path to prosecution reform, it should not be a matter of changing attitudes based on electoral advantage or election results.

The police have been granted extensive direct investigative powers under the current administration. The government has also freed them from the prosecution’s supervisory authority, which had been a thorn in their side. In that sense, the police owe a great debt to this administration. It is easy to anticipate that wielding the sword of law enforcement against such a government or ruling party will not be as easy as it sounds.

The CIO, by its very nature, was established by the current administration and ruling party. For the same reasons, investigating those in power is unlikely for now.

In this situation, if even the Prosecutor General is someone who deeply sympathizes with the President’s governing philosophy, President Moon Jae-in would, in effect, hold three different swords in his hands. It is obvious that the most important principle-the political neutrality and independence of investigative agencies-cannot be fully maintained.

The new Prosecutor General to be appointed this time will be tasked with concluding the remaining investigations related to the administration and establishing desirable cooperation with newly created agencies such as the CIO and the National Investigation Headquarters of the National Police Agency. Especially with less than a year left before the presidential election, the political neutrality of the Prosecutor General is more important than ever.

This week, the Prosecutor General Candidate Recommendation Committee will convene to select Yoon’s successor.

According to Article 34-2 of the Prosecutors’ Office Act, if the committee recommends at least three candidates to Justice Minister Park Beom-gye, the minister then nominates one final candidate to President Moon for appointment. However, everyone knows that the committee is largely a formality.

This is because the composition of the committee is entirely determined by the Justice Minister. The minister appoints or designates all nine committee members, and also selects the chairperson. The committee includes the Director-General for Criminal Affairs at the Ministry of Justice and a high-ranking prosecutor appointed by the minister.

Although there is a chance that external members-such as the presidents of the Korean Bar Association or the Korean Law Professors Association, or the chair of the Law School Deans’ Council-could strongly oppose a particular candidate and have them excluded, in most cases, three or four candidates favored by the minister are recommended, and among them, the person originally favored by the President is always included.

Ultimately, the person holding the key is President Moon.

The question is whether he will choose someone who can protect him and serve as a shield even after he leaves office, or whether he will select someone with the sense of duty and capability to reorganize the prosecution and enable it to fulfill its original mission in the changed investigative environment.

The decision rests solely with President Moon. And that choice must answer the question: “What do the people want the President to choose?”

In this regard, it is deeply concerning that Justice Minister Park recently mentioned “alignment with the President’s governing philosophy” as a criterion for selecting the Prosecutor General.

Two months ago, there were media reports-citing ruling party sources-that during discussions about senior prosecutor appointments with then-Senior Presidential Secretary for Civil Affairs Shin Hyun-soo, before Shin offered his resignation, Minister Park pressured Shin, who disagreed with retaining Lee Sung-yoon as head of the Seoul Central District Prosecutors’ Office or promoting Shim Jae-chul to head of the Seoul Southern District Prosecutors’ Office, by asking, “Why aren’t you on our side?”

If it is true that the minister considered “our side” and “your side” while performing the important task of appointing senior prosecutors, it is indeed a serious problem. Once the new Prosecutor General is appointed, a large-scale reshuffle of prosecutors will follow. If Minister Park truly holds such views, it will be difficult for anyone appointed as Prosecutor General to perform the role properly.

It is telling that even Cho Eung-cheon, a member of the ruling Democratic Party, wrote on his Facebook page on April 24 that he “couldn’t believe his ears” and was “taken aback by how candidly the minister admitted he wants a compliant prosecution” in response to Minister Park’s comment that “alignment with the President’s governing philosophy” is an important criterion for appointing the Prosecutor General.

What is clear is that the standard for appointing the Prosecutor General should be “the will and courage to uphold the political neutrality and independence of the prosecution”-not “the President’s governing philosophy” or “whose side they are on.”

What President Moon should be considering now is only one thing: “What kind of choice do the people who elected me President and entrusted me with the nation’s affairs expect me to make?” He must pay attention to public sentiment.

No power lasts forever. The President and members of the National Assembly have only been delegated a portion of sovereignty by the people for five and four years, respectively.

“The sovereignty of the Republic of Korea resides in the people, and all power comes from the people.”

This is the first and foremost principle proclaimed by Article 1 of our Constitution.

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