From rule by law to rule of law

Dismissing a criminal case or excessively probing into it with no discretion will shake the very foundation of our democracy.

Former Vice Justice Minister Kim Hak-eui was cleared of all charges, including the count of receiving sex for favors from a businessman, at the Supreme Court last week. The top court found the testimonies from witnesses questionable and some of the counts passed the statute of limitations.

Although Kim has been freed from judiciary charges since he came under prosecutorial investigation in March 2013, he is not entirely pardoned for moral liability. The evidence presented at the trials have uncovered his wrongdoings. Although the statute of limitations for receiving sexual bribes charge had expired, the first court found the person in the video evidence to be Kim. An audio forensic also affirmed a 95 percent match of his voice in the video.

The case underscored Korea’s judiciary limitations on prosecuting a senior government official. The early-stage investigation had been poor. The prosecution rejected the police’s request for an arrest warrant for Kim in 2013. It did not search his house or seize his mobile phone. Kim was acquitted without any indictment after a four-month probe.

The second investigation was sparked by the female victim of a sex crime in the following year, but that also ended without indictment. Kim was not even summoned for questioning by prosecutors. Evidence did not build up due to the prosecution’s lacking investigations, and some of the claims against him passed the statute of limitations during trials.

The Moon Jae-in administration revived the investigation under the relentless campaign to punish figures of wrongdoings committed under previous conservative governments. At that time, President Moon directly ordered the prosecution and the police to investigate Kim’s case with their names at stake.

The prosecution this time had to turn to illegal means to persecute the former vice justice minister of the conservative administration. It banned Kim from leaving the country after manipulating related documents. That’s not all. The Justice Ministry and Supreme Prosecutors’ Office illegally compiled private information about Kim.

The prosecution acted in the opposite way because the law enforcement authority was swayed by the sitting power. It was led by rule by law, not rule of law. The prosecution did not follow the rules of the Constitution and law, but bent them to meet the orders from the powers that be.

Judiciary principles stipulate that the state power authorized by the people should be executed in compliance with laws. Such principles became demoralized if criminal cases and investigations come under the influence of the sitting power. Dismissing a criminal case or excessively probing into it with no discretion will shake the very foundation of our democracy.