[Reporter’s Notebook] Park Beom-gye Bolsters Yoon's Pledge to Abolish Ministerial Investigative Command Authority

Seokjin Choi, Legal Affairs Specialist Reporter.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] There was an incident where Park Beom-gye, Minister of Justice, whose term is practically just over a month left, attempted to exercise his investigative command authority but gave up after media reports surfaced and public opinion worsened.

Minister Park reportedly tried to restore the Prosecutor General's investigative command authority over cases such as the 'Channel A Coercion Attempt' case and the 'Deutsche Motors Stock Manipulation Case,' which had been suspended when then-Minister of Justice Choo Mi-ae exercised her investigative command authority during the time when President-elect Yoon Seok-yeol was Prosecutor General.

In the former case, known as the 'Prosecutor-Media Collusion' suspicion case, Prosecutor Han Dong-hoon, classified as a close aide of President-elect Yoon, is involved, while in the latter case, Yoon's wife Kim Kun-hee is implicated.

Why Now, of All Times?

The timing was peculiar. After reports emerged that the Seoul Central District Prosecutors' Office investigation team, which investigated Prosecutor Han, had submitted its 11th non-indictment opinion, reports followed that Minister Park had ordered the exercise of investigative command authority to restore the Prosecutor General's command authority. This led to analysis that Minister Park intended to restore the Prosecutor General's command authority over the 'Channel A case' and then, through Prosecutor General Kim Oh-soo, block the non-indictment decision against Prosecutor Han.

Minister Park himself reacted incredulously to such criticism. He said he only intended to revoke the investigative commands issued during former Minister Choo's tenure, which excluded the Prosecutor General's investigative command authority over all cases, so that conclusions could be reached under the Prosecutor General's command system. He was surprised that articles suggested the restoration of command authority was aimed specifically at Han Dong-hoon. He also stated that restoring the Prosecutor General's command authority aligns with the 'normalization of abnormality' consistent with the Prosecutors' Office Act and other legal frameworks.

However, it is difficult to take Minister Park's words at face value because of questions like "Why only now?" and "Why at this particular time?"

After former Minister Choo was dismissed following the court's repeated injunctions against disciplinary requests against President-elect Yoon in January last year, Minister Park, who took over the position, left this abnormal situation unattended throughout his 15-month tenure. Even if it was unavoidable until Yoon resigned as Prosecutor General, how does he explain the 11 months after the new Prosecutor General Kim took office in June last year? The explanation that it was only now reviewed because it could affect the presidential election is equally hard to accept. There was ample time to restore the Prosecutor General's investigative command authority well before Yoon's presidential candidacy was officially announced.

Trying to Block Non-Indictment of Han Dong-hoon, Which Burdens the Regime?

Above all, the reason Minister Park's attempt to exercise investigative command authority is not taken purely as he claims is that he has also shown a negative stance toward the non-indictment of Prosecutor Han.

At a press briefing in December last year, when criticized that the handling of Prosecutor Han related to the 'Channel A case' was delayed, he responded, "The Minister can only issue specific investigative commands through the Prosecutor General, so I have not received complete information reports regarding this case, which excludes the Prosecutor General's command," and added, "I will ask for the Prosecutor General's opinion deeply and review it." However, even afterward, the abnormal situation where Prosecutor Han remained a suspect without indictment or non-indictment decisions continued while the Prosecutor General's command authority was excluded. Since the Prosecutor General changed and the exclusion of the Prosecutor General's command authority due to the investigative command targeting Prosecutor Yoon was considered abnormal, shouldn't Minister Park have promptly issued an investigative command to restore the Prosecutor General's command authority?

At the time, Minister Park responded to a reporter's question, "Isn't delaying the non-indictment of Prosecutor Han due to mobile phone forensics contrary to the principle of legality or presumption of innocence?" by saying, "This case is one where various values pursued by criminal procedure law, such as discovering substantive truth and complying with due process, are intertwined," and "I cannot specify exactly what equipment is used or how it is proceeding, but I understand the (mobile phone) forensics are ongoing." However, the very next day, media reports revealed that the prosecution had effectively halted the forensic work on Prosecutor Han's mobile phone.

The 'Prosecutor-Media Collusion' case, which triggered former Minister Choo to demote Prosecutor Han based solely on media allegations, implies collusion between the prosecution and the media. Yet, when indicting former Channel A reporter Lee Dong-jae, the prosecution did not even list Prosecutor Han as an accomplice in the indictment. Moreover, the court acquitted Lee. In this situation, the prosecution has neither indicted Prosecutor Han nor concluded the case nearly two years after the investigation began.

The 'Prosecutor-Media Collusion' case provided momentum for the Moon Jae-in administration's strong prosecutorial reform drive. The non-indictment of Prosecutor Han would inevitably burden not only former Minister Choo but also former Justice Ministry Human Rights Bureau Director Hwang Hee-seok, who helped whistleblower Ji Mo with the 'operation,' Democratic Party lawmaker Choi Kang-wook, and even President Moon Jae-in.

If Lee Jae-myung, the Democratic Party's presidential candidate, had been elected president, would Minister Park have hurried to exercise investigative command authority? Would the abnormal situation of delaying the handling of the politically burdensome case against Prosecutor Han without indictment or non-indictment have continued longer?

Investigative Command Authority Used Only Once in 71 Years... Exercised Three Times Only During Moon Jae-in Administration

Regarding President-elect Yoon's pledge to abolish the Minister of Justice's investigative command authority, I believe various opinions can be presented depending on political orientation or views on the prosecution.

The reason is that if the Minister's investigative command authority could be exercised properly to check the prosecution's runaway actions, there would be no reason to abolish it. However, in reality, it has never been exercised that way. In fact, in our constitutional history, the Minister's investigative command authority has been used as a tool to undermine the prosecution's political neutrality and independence.

The legal basis for the Minister's investigative command authority is Article 8 of the Prosecutors' Office Act (Minister of Justice's Command and Supervision), which states, "The Minister of Justice is the highest supervisor of prosecutorial affairs and generally commands and supervises prosecutors, but only the Prosecutor General commands and supervises specific cases."

The Minister's investigative command authority provision has existed continuously in the Prosecutors' Office Act since its first enactment in 1949, where Article 14 stated, "The Minister of Justice is the highest supervisor of prosecutorial affairs and generally commands and supervises prosecutors. Only the Prosecutor General commands and supervises specific cases." However, until the Moon Jae-in administration, it had been exercised only once. It is a provision to be exercised exceptionally.

In other words, the Minister's investigative command authority clause in the Prosecutors' Office Act should be interpreted as meaning "the Minister should not intervene in specific case investigations, but if intervention is unavoidable, it must be done only through the Prosecutor General." The literal interpretation clearly prohibits the Minister from directly issuing specific investigative commands to chief prosecutors or investigating prosecutors at the field level.

However, former Minister Choo, who was a politician and maintained his position as a ruling party lawmaker while serving as Minister of Justice, seemed to interpret this provision as "the Minister can intervene in specific case investigations through the Prosecutor General as much as desired."

The first time the Minister's investigative command authority, stipulated since the 1949 enactment of the Prosecutors' Office Act, was exercised was in 2005 during the Roh Moo-hyun administration. Then-Minister of Justice Cheon Jeong-bae, affiliated with the Uri Party, instructed the prosecution to conduct a non-custodial investigation of Kang Jung-gu, a Dongguk University professor, who was subject to arrest due to repeated violations of the National Security Act and pro-North Korea controversies. This was an unreasonable demand deviating from the prosecution's precedent for similar cases and warrant application standards. Eventually, Prosecutor General Kim Jong-bin accepted Minister Cheon's investigative command and resigned in protest. Kang was later convicted and sentenced to prison by the Supreme Court.

During the 56 years after the system was established, the Minister's investigative command authority was exercised only once, and it was not exercised for the next 15 years. However, during the Moon Jae-in administration, it was exercised three times. Especially, former Minister Choo's two exercises of investigative command authority involved six cases in total.

In a court decision that nullified former Minister Choo's order suspending the Prosecutor General's execution of duties, the court mentioned Article 8 of the Prosecutors' Office Act and pointed out that "the exercise of the Minister of Justice's specific command and supervision over the prosecution, especially the Prosecutor General, should be limited to the minimum necessary."

Last year, Minister Park exercised investigative command authority to have the Supreme Prosecutors' Office's chiefs' meeting review the possibility of indicting the investigation team on charges of witness tampering related to the case of former Prime Minister Han Myeong-sook, for whom the ruling party had campaigned for exoneration. This was a measure taken six years after it was revealed that a check issued by former Hanshin Construction CEO Han Man-ho was used as a rental deposit for Han's younger sibling, and the Supreme Court confirmed the guilty verdict and sentenced imprisonment.

Moreover, even though the Supreme Prosecutors' Office chiefs' meeting concluded to maintain the non-indictment decision on the related parties, Minister Park, contrary to his promise, did not accept this result but ordered a large-scale joint inspection by the Ministry of Justice and the Supreme Prosecutors' Office, including the procedure of the chiefs' meeting. However, the four-month joint inspection did not produce the results Minister Park expected, and it was criticized as a 'bland' inspection with no practical effect since the statute of limitations for disciplinary action had passed.

The Harms of Investigative Command Authority Proven by History... The Minister Should Be a Shield for the Prosecution

Historical experience is more trustworthy than the fickle human heart.

Setting aside controversies over the background, legislative intent, interpretation of provisions, and institutional significance of the Minister's investigative command authority stipulated by law, it is natural to question whether it is right to leave the Minister's investigative command authority as it is when looking back at the four cases actually exercised in our country.

President Moon Jae-in, after exposing upper-level pressure on the investigation of the 'National Intelligence Service Comment Manipulation Case' during his time as a senior prosecutor, wandered in obscure posts before leaving the prosecution. He then joined the 'Choi Soon-sil Special Prosecutor Team' and became a people's prosecutor. To appoint President-elect Yoon, who was then the head of the Seoul Central District Prosecutors' Office, Moon lowered Yoon's rank from high prosecutor to district prosecutor, using an extraordinary measure to seat Yoon as head of the Seoul Central District Prosecutors' Office. He then appointed Yoon as Prosecutor General through another disruptive personnel reshuffle.

However, when the investigation into former Minister of Justice Cho Kuk began, Moon and ruling party figures who had praised Yoon as 'our Prosecutor General' at the time of appointment changed their stance 180 degrees. Ruling party figures who had always emphasized the prosecution's political neutrality and called for 'prosecutorial reform' cheered when Yoon investigated others but treated Yoon as a terrible person wielding a knife against the appointing authority when their own side became the investigation target. The substance and illegality of various allegations surrounding Cho's family, which Yoon had to investigate as the minister candidate trusted by the president, were unimportant to them. The Minister's investigative command authority and personnel authority became means to cut off the Prosecutor General's burdensome limbs and prevent involvement in investigations.

The first investigative command by Minister Cheon Jeong-bae, who instructed non-custodial investigation of a public security suspect for political reasons, the two investigative commands by former Minister Choo that excluded the Prosecutor General's command over cases based solely on media allegations, and Minister Park's investigative command to re-examine a case with a Supreme Court guilty verdict for the sake of restoring the reputation of a ruling party politician?all of these cannot be seen as exercised to protect the prosecution's political neutrality. Rather, it was the opposite.

Unfortunately, in our constitutional history, the Minister's investigative command authority has never been exercised to protect the prosecution's political neutrality or independence. Instead, it has been abused as a means to enforce decisions made based on the president's or ruling party's political interests on the prosecution. The argument that the Minister's investigative command authority is necessary for civilian control of prosecutorial power and control by elected power has been sufficiently disproven by precedents. Former Ministers Choo Mi-ae and Park Beom-gye have demonstrated that the Minister's investigative command authority can be abused to politicize the prosecution.

The Minister of Justice should act as a shield between the president and the Prosecutor General to block political wind from the political sphere. If the Minister directly forces the prosecution to conduct investigations that suit the ruling party's tastes and leads efforts to block investigations against the regime, no matter how much the law is reformed or new systems are created, the prosecution's political neutrality or independence will remain a distant story. It is clear that when President-elect Yoon takes office in a month, the Minister of Justice will also be replaced by someone trusted by the president-elect. Following the decision to abolish the Blue House Civil Affairs Office, which once controlled investigative agencies, and the pledge to abolish the Minister's investigative command authority that has undermined the prosecution's political neutrality, I wonder if the Democratic Party, responsible for the current situation, has the right to oppose this.

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