Constitutional Court rules CIO Act is not unconstitutional

Court recognizes right of CIO prosecutors to issue warrants amid fierce opposition

Constitutional judges, including Constitutional Court Chief Justice Yu Nam-seok, during the proceedings for the CIO Act constitutionality case on Jan 28

The Constitutional Court has concluded that The Act on the Establishment and Operation of the Corruption Investigation Office for High-Ranking Officials (CIO Act) is not in violation of the Constitution.

According to the ruling on Jan. 28, the constitutional petition by the People Power Party (PPP)’s Yoo Sang-bum and other opposition lawmakers claiming the CIO Act to be “in violation of the principle of separation of powers,” was rejected in a six-to-three decision, with five justices ruling to reject the petition and one ruling to dismiss it.

Yoo and the United Future Party (the previous name of the PPP) requested a constitutionality review last year, claiming that the CIO lacked the constitutional basis to be a state institution. Their argument was that the CIO would violate political neutrality by increasing the influence of officials nominated by the president, the National Assembly speaker and special interest groups.

But the Constitutional Court concluded that the CIO was not in violation of the principle of separation of powers.

“The CIO can be viewed as a central administrative institution affiliated with the executive branch headed by the president, with a scope of jurisdiction that extends nationally,” the court said.

“The reason that it was established under a format where it is not affiliated with an existing administrative organization or subject to direction and oversight is because of the particular nature of its operations,” it added.

“In terms of the exercise of authority by the CIO, controls may be imposed by the National Assembly and other state institutions. As such, it cannot be seen as violating the principle of the separation of powers simply because it was established as an independent body,” the court said.

CIO Prosecutors allowed to request arrest warrants

The right of CIO prosecutors to request arrest warrants was also recognized. This means that the right to request a warrant according to Article 16 of the Constitution is not granted solely to prosecutors affiliated with the Supreme Prosecutors’ Office.

“Military prosecutors and special prosecutors exercise the right to request warrants, even though they are not considered prosecutors by the Supreme Prosecutors’ Office,” the court noted.

“The Constitution’s provision about a ‘warrant issued upon request of a prosecutor’ refers to a prosecutor associated with a state institution that exercises prosecutorial authority, namely someone performing duties for an institution that defends human rights,” it concluded.

The court also said, “Because prosecutors in the investigative office [CIO] will be appointed from among people who have been licensed attorneys for a set period of time, they qualify as legal experts.”

“Giving prosecutors in the CIO the authority to request warrants cannot be seen as violating the doctrine of warrants,” it concluded.

Commenting on a provision that allows the CIO to take over investigations from other institutions related to crimes by high-ranking officials, the court said, “This can be seen as acknowledging the authority of the CIO director to request a transfer which allows an autonomous investigation of crimes by high-ranking officials.”

At the same time, it added that “the failure to coordinate and distribute investigation duties between the CIO and other investigative institutions could be a source of unnecessary confusion.”

In a dissenting opinion, Justices Lee Eun-ae, Lee Jong-seok and Lee Young-jin concluded that the CIO was an unconstitutional organization that violated the principle of separation of powers and equal rights, citing the potential for it to selectively investigate specific judges and prosecutors.

“There is a possibility of internal and other external investigations of a judge’s trial proceedings based on arbitrary determinations by prosecutors affiliated with the investigative office,” they argued.

“Internal investigations alone have the potential to severely compromise the judiciary’s independence,” they warned further.

Regarding the provision for transferring investigations to the CIO, the judges noted the “potential for transfer decisions lying unilaterally and arbitrarily in the hands of the CIO director.”

By Bae Ji-hyun, staff reporter

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