South Korea’s Prosecutorial Reform Discussion on Warrant System from the Constitutional Perspective of Human Rights Protection, Political Neutrality and Democratic Control

The goal of Korea’s prosecutorial reform effort is considered to be political neutrality and fairness of investigation and prosecution, and more substantive protection of human rights and civil liberties in all phases of criminal justice administration. A more complicated challenge concerns the concept itself and the institutionalization of democratic control in such prosecutorial reform. The Constitution of the Republic of Korea, which was revised in 1987 and came into effect in 1988, has normalized the relationship between the President and National Assembly by limiting the presidential powers that had often usurped the authority of the National Assembly in lawmaking and government control, with the independence of the judiciary as the bulwark of constitutional governance and rule of law. The establishment of the Constitutional Court under the 1988 Constitution has also greatly contributed to constitutionalism, rule of law, and democratization by enabling civil rights protection and challenge to the unjustifiable exercise of governmental powers in the form of constitutional adjudication. The civil sector has assumed its role most saliently by citizen lawmaking and cause-lawyering. In the long-term trajectory of democratization, Korea now seeks to fine-tune the power allocation vested in different institutions within the government vis-à-vis citizens. The specific tasks in this vein include how to better adjust the investigatory authorities of the police and the prosecution in criminal investigation and in the criminal justice administration as a whole, and how to harmonize the constitutional mandates of political neutrality and fairness of investigation on one hand and the democratic control on the other. The core issues of prosecutorial reform discussion and effort in Korea pertain to the legal, institutional, and practical measures to reform (a) the organization and decision-making process of the prosecution, (b) the fairness and political neutrality in personnel decisions, (c) the investigation practice for protecting civil liberties, importantly including the right to assistance of state-appointed counsel at the interrogation phase, (d) the protocol and standard for communication between the investigatory authority and press encompassing press releases for criminal matters by the investigatory authority prior to charge, (e) the relationship between police and prosecution in initiating, conducting, and closing investigations and also in requesting warrants to be issued by the court, and (f) the mechanism to check the investigatory and prosecutorial function of the prosecutors’ office by establishing a separate institution of the Corruption Investigation Office for High-Ranking Officials (CIO) for the investigation and charge of certain high-ranking public officials including prosecutors and judges. The appropriate purview of the authority vested in the Minister of Justice to direct the Attorney General under the Prosecutors’ Office Act is also at issue, posing a normative constitutional challenge as well as an issue of permissible statutory interpretation of the meaning of democratic control vis-à-vis political neutrality and fairness of criminal investigation and prosecution. This paper focuses on the authority to request a warrant to be issued by the judicial court as one of the core issues of prosecutorial reform discussion and effort. Currently, the authority to request the issuance of a warrant by the court is exclusively vested by the Constitution in the prosecutors’ office, vis-à-vis the police. There is a historical account for such constitutional provision that began in the colonial period, and the revision history of the relevant constitutional and statutory provisions indicates the legislative intent of the current constitutional provision and ensuing institutions. There have been arguments for and against constitutional revision to remove such constitutional limits so that this issue will be settled at the statutory level. Ultimately, the prosecutorial reform effort in Korea aims to guarantee political neutrality and fairness in investigation and prosecution in order to secure and protect human rights and civil liberties in all phases of criminal justice administration, for further and more substantive implementation of the constitutional fundamental rights. The mandate of democratic control has a sensitive yet pervasive relevance in such discussion and effort, as the authority and function of investigation and prosecution as the actual and potential exercise of governmental authority onto the individual directly influences the protection of civil rights of individuals, most importantly including those of minority groups. The issue pertaining to the authority to request the issuance of warrant should also be discussed by harmonizing the constitutional mandates of political neutrality and democratic control, for the ultimate goal of human rights protection in criminal justice administration in Korea.