Constitutional Court upholds prosecution reform bill

The South Korean Constitutional Court has upheld a bill to strip away the investigative powers of the prosecution, known as the “complete deprivation of the prosecution’s investigation rights” law. The Constitutional Court dismissed the complaints filed by the ruling People Power Party regarding the controversial amendment to the Prosecution Act and Criminal Procedure Act, which significantly limits the power of prosecutors, reducing the direct investigative authority of prosecutors to only two categories of corruption and economic crime, down from the previous six categories. The ruling held the view that while the voting and legislative prerogatives were infringed upon by Rep. Min Hyeong-bae of the major opposition Democratic Party’s decision to quit the party to covertly help pass the reform bill, the passing and declaring of the bill exercised by the National Assembly Speaker remained unviolated.

While there have been a few cases where the voting and legislative prerogatives were deemed violated in adjudication on competence disputes, including the passing of the Media Act in 2009, there has been no precedent of nullifying a bill that has already been passed. Broadly interpreted, the court’s ruling emphasized that respecting the autonomy of the legislature is critical in maintaining the separation of powers. As to the complaints filed by the Ministry of Justice and the prosecution claiming that the bill violates the investigative and prosecutorial powers of the prosecution, the Constitutional Court dismissed it, citing the lack of constitutional grounds for the prosecution’s investigative and prosecutorial powers.

The dismissal was predicted as six judges of the Constitutional Court were considered liberal including Chief Justice Yoo Nam-seok, Judge Moon Hyeong-bae, Judge Lee Mi-seon, Judge Lee Seok-tae, Judge Lee Eun-ae, and Judge Kim Ki-young. The decision was reached in a 5-to-4 ruling despite Judge Lee Eun-ae’s breaking away from the liberal view to lean towards more conservative judges, including Lee Seon-ae, Lee Jong-seok, and Lee Young-jin, who were of the view that the voting and legislative rights, as well as the passing and proclamation authorities, were violated.

The decision does not mean that there are no issues with the “complete deprivation of the prosecution’s investigation rights” law. The bill is fraught with many problems, such as limiting the complaint’s objections during the rough-and-ready legislation process. While the aim is to restrict excessive investigative powers of the prosecution, the bill must be improved so as not to weaken overall investigative powers. The Constitutional Court acknowledged flaws in the legislative process, such as disguised defection of the party by Rep. Min. Still, he continues to spout sophistry, claiming that “disguised defection was to comply with the rule of the National Assembly.” The opposition Democratic Party must accept the overall purpose of the Constitutional Court’s ruling and cooperate for the necessary revision of the controversial law.