The government is considering disciplining chief prosecutors who issued a collective statement in protest of dropping the appeal in the "Daejang-dong development scandal." The reason given is that it was a "collective action prohibited under the Public Officials Act." But legal circles say it is hard to deem the prosecutors' collective statement illegal. Compared with past cases, they say it was a legitimate act that does not violate the State Public Officials Act.
◇Constitutional Court finds no issue with teachers' rally opposing education policy
According to legal sources on the 18th, the Ministry of Justice is reviewing a personnel measure to reassign frontline district chief prosecutors who protested the decision to drop the appeal in the Daejang-dong development scandal to positions equivalent to ordinary prosecutors, rather than positions at the Supreme Prosecutors' Office rank (high prosecutors and chief prosecutors). In addition to those at the chief prosecutor level, disciplinary action and inspections are also reportedly being considered for prosecutors who issued statements related to the decision to drop the appeal. Under Article 66 of the State Public Officials Act, collective action outside official duties is prohibited.
Therefore, the key question is whether prosecutors issuing a position collectively constitutes "collective action outside official duties." The ruling bloc views the district chiefs' involvement in the Supreme Prosecutors' Office's work as an act "outside official duties," and since they issued a joint position, it was "collective action."
Legal circles, however, see it differently. Kim Yong-seop, an emeritus professor at Jeonbuk National University Law School, said, "The act of chief prosecutors using the internal network to collectively request an explanation for the decision to drop the appeal constitutes collective action, but it also has an official character, such as securing standards for maintaining prosecutions," adding, "In their capacity as chief prosecutors who direct affiliated prosecutors and manage the organization, they can ask for the reasons for dropping the appeal."
Earlier, in Aug. 2014, the Constitutional Court found constitutional the provisions of the Teachers' Union Act banning all political activities by teachers and the State Public Officials Act banning collective action by public officials. At the time, the court held, "Although the Teachers' Union Act bans all political activities, expressions of opinion by teachers' unions related to education policy should be deemed permissible if within a scope that does not undermine political neutrality."
On this, Cha Jin-a, a Korea University Law School professor, said, "The key is that political expressions of opinion related to education policy were allowed as an expert group in education," adding, "As investigation and prosecution experts, the prosecution expressing opinions related to dropping the appeal in the Daejang-dong development scandal can also be seen as a legitimate act." She went on, "If one interprets it as banning all collective action and political activity by public officials, that itself raises constitutional issues," adding, "If there are personnel disadvantages, that is also unconstitutional."
◇Board of Audit and Inspection also says "no problem with prosecutors' collective statement"
The Board of Audit and Inspection also judged in July this year that it is difficult to see prosecutors' joint statements or posting of opinions as illegal. When the Democratic Party of Korea moved to impeach prosecution officials including former Seoul Central District Prosecutors' Office chief Lee Chang-su, the Seoul Central District Prosecutors' Office and others posted a collective statement on the internal prosecution network (Epros) on Nov. 26 in protest. In response, the Democratic Party asked the Board of Audit and Inspection on Dec. 5 of the same year to verify any illegalities.
In its audit report, the Board of Audit and Inspection said, "Prosecutors' joint statements or postings of opinions expressed general concerns about the decline in the prosecution's function due to the National Assembly's push for impeachment and about prosecutors' political neutrality and independence," adding, "It is difficult to conclude that this is collective action against the public interest."
The Board of Audit and Inspection also stated, "It is difficult to conclude that prosecutors' statements at the time on the legitimacy of impeachment constituted opposition to the political activities of a particular party, and prosecutors, as members of the public, are entitled to freedom of expression under Article 21 of the Constitution."
The opposition says it is "political power trying to tame the prosecution." The People Power Party held a press conference in front of the Government Complex Gwacheon, where the Ministry of Justice is located, on the morning of the day, calling for a parliamentary investigation into the dropping of the appeal in the Daejang-dong case and said, "Let's conduct a parliamentary investigation and appoint a special prosecutor to uncover the truth."