The need to set up this specialized body in the country was due to widespread public distrust of state prosecutors who are actually part of the government: in the previous years the latter used them as a political instrument to fight against the opposition. The establishment of a separate body is supposed to prevent the arbitrary prosecution of members of the opposition, as well as to step up the efforts to fight against corruption among high-ranking officials.
According to the bill, the anti-corruption agency is an independent body responsible for investigating corruption crimes committed by high-ranking officials, including the President, the Prime Minister, heads of Ministries, MPs, judges, prosecutors and police officers, as well as their associates. Both incumbent and former officials can be subject to investigation.
The organization will consist of 25 prosecutors and 40 investigators, plus its head and a deputy head. The head of the agency will be appointed by the President.
In accordance with the new bill, the investigative bodies, the prosecutor’s office and the police will have to inform the anti-corruption agency about the collected evidence of corruption offences committed by high-ranking officials. At the same time, the head of the agency will have the power to request the termination of an investigation if he/she finds it ill-founded or inappropriate.
It should be highlighted that these provisions gave rise to considerable criticism from the main opposition party, conservative groups and the general public. This is due to the fact that the rules, introduced by the bill, grant the head of the agency, who is appointed by the President, the right to decide whether to terminate an investigation, thereby creating a mechanism that allows the latter to terminate any undesirable investigation. This system basically provides protection for the President and the ruling party from any prosecution of corruption.
108 members of the National Assembly from the Liberty Korea Party, the main opposition party, resigned in protest against the adoption of the bill. According to Shim Jae-chul, the chairperson of the party, the new agency can become a body which intentionally covers corruption crimes committed by the members of the present government.
South Korea has already seen big corruption scandals among high-ranking officials. In late 2016 for example, the National Assembly impeached President Park Geun-hye. The latter had given access to classified documents to her friend, who held no public office, had allowed her to amend the texts of her statements and decide whom to appoint to high positions. Besides that, her friend, getting advantage of her political influence, had extorted money from major South Korean corporations and had transferred it to the accounts of the non-profit foundations belonging to her. All in all, she had received a total sum of 70 million US dollars from 52 companies and 19 business groups. The law enforcement bodies stated that Park Geun-hye was involved in those and other corruption schemes: she and two other high-ranking officials were charged with corruption and abuse of functions.
The establishment of the corruption investigative agency could permit to more effectively investigate such cases of misconduct among high-ranking officials. However, in order to achieve this objective, the State should secure the real independence of this body, as in its current form it can serve as an “airbag” for the present government. In particular, it seems necessary to introduce a different procedure for appointing the head of the agency to avoid his/her dependence on the President of the country, and to review the mechanism for the potential termination of investigations by the agency so that such decision would not constitute the discretionary power of the head of the agency. At the same time, the establishment of specialized anti-corruption bodies requires that a series of other factors, which we have already written about (in Russian), be taken into consideration. These include:
- independence: protection against undue political influence;
- specialization: the provision of trained staff with specific knowledge and experience and the appropriate mandate to fight against corruption;
- resources and powers: the staff of the bodies should be provided with everything that could be needed for effective work;
- political, cultural, social, historical, economic, constitutional and legal peculiarities of a country.
Since 2018 South Korea has already had a specialized anti-corruption body, the Anti-Corruption and Civil Rights Commission (ACRC), whose mandate covers different issues concerning the prevention of and fight against corruption. In particular, ACRC receives and processes the reports of whistleblowers in the public sector, provides them with protection form possible retaliation and works on optimizing the administrative systems based on the tips it receives.