Back in December 2019, South Korean President Moon Jae-in achieved what seemed like a major victory in his anticorruption platform when the National Assembly established a new agency, the Corruption Investigation Office for High-Ranking Officials (CIO). Armed with broad investigatory authority, as well as a more limited but nonetheless important power to prosecute members of the Supreme Prosecutor’s Office (SPO), the CIO was supposed to be at the vanguard of the effort to clean up South Korean government. Yet for over a year, the CIO was unable to operate because it had no Director General. The reason for this had to do with the original design of the mechanism for selecting this official. In an effort to ensure a consensus candidate and avoid politicization of the agency, the original CIO legislation required that a Director General candidate receive the support of six out of the seven members of a Recommendation Committee composed of the Minister of Justice, the Minister of Court Administration, the President of the Korean Bar Association, two members from President Moon’s party, and two members from the opposition People Power Party (PPP). That system meant that at least one opposition party member would need to support a candidate for that candidate to be appointed, thus preventing the President from installing a crony.
The system, however, did not work as intended, because the two PPP members on the Committee refused to confirm any of the candidates put before the Committee. Finally, in December 2020, a year after the CIO’s creation, the National Assembly passed a bill that reduced the number of votes needed to recommend a candidate from six to five. This enabled the Recommendation Committee to appoint (over the opposition of the Committee’s two PPP members) the CIO’s first Director General, Kim Jin-wook, and the CIO finally began operating in January. Naturally, the PPP was outraged. This change to the appointment procedure, the PPP argued, undermines the CIO’s independence and enables the President to ensure that this powerful agency is run by a loyalist, who is likely to be unfairly biased against the opposition.
This concern is fair, up to a point. Three of the seven members of the Committee—the two members of the majority party and the Minister of Justice—are closely aligned with the President. The Minister of Court Administration is appointed by the Chief Justice of the Supreme Court, not the President, but the President appoints the Chief Justice, and Korean Chief Justices have a history of colluding with presidents. A fifth member, the President of the Korean Bar Association, is elected by a vote among the local bar chapters. While this may provide some check on the President, it is a weak one, and the PPP and other critics are right to be concerned.
Nevertheless, the reduction in the required number of votes from six to five was an improvement under the circumstances. The threat of biased anticorruption investigations, though real, is not much greater with the new version of the CIO than under the status quo. And while greater safeguards would be welcome, there are better ways to promote an unbiased agency than to give the opposition a veto over its leader.
First things first: While a requirement of bipartisan consensus in the selection of an anticorruption agency’s head sounds great in theory, the reality in South Korea is the PPP despises the CIO and President Moon and lost nothing from keeping the agency moribund. While there may be good faith arguments against having the CIO at all, the purpose of the super-majority requirement on the Recommendation Committee was to give multiple stakeholders, including the opposition party, a voice in selecting a Director General who would be fair and effective, not to give the opposition the power to neutralize the agency altogether. The PPP’s intransigence eventually forced the government’s hand.
Does the fact that the President can appoint a loyalist to the Director General position mean that the CIO may be unduly biased against the opposition party? Maybe—but a biased CIO does not place President Moon’s political opponents at any greater danger than they were before the CIO’s creation. After all, with the CIO inoperative, the responsibility for anticorruption investigations remained with the SPO, which is even more firmly under the President’s control. (The President appoints both the Prosecutor General and the Minister of Justice, who supervises all prosecutorial affairs.) So, transferring some of the SPO’s authority to the CIO does nothing to enhance the President’s ability to go after his political opponents.
That said, worries about political bias at the CIO should be taken seriously, both because such bias is a genuine concern, and because the perception of bias can undermine the agency’s legitimacy. If President Moon truly wishes to see the CIO succeed, then he should advocate for alternative changes to the Recommendation Committee—changes that will make the CIO more independent from the presiding administration, without giving the opposition party the ability to incapacitate the agency altogether.
In particular, the Ministers of Justice and Court Administration should be removed from the Committee and replaced with members less likely to succumb to the President’s influence, such as deans from the top law schools or prominent legal scholars. (To ensure independence, there could be an additional requirement that these Committee members have never held a government position and cannot seek a government position in the future.) Another possibility is to have a representative from an intergovernmental organization, such as the United Nations or IMF, serve as a rotating member on the Committee. A more dramatic reform might be to empower the presidents of local bar associations to provide a shortlist of Director General candidates for the Recommendation Committee to vote upon. Thanks to last December’s change in the selection process, the CIO can finally begin launching investigations into corrupt activities. But though the PPP’s objections to this change may be self-serving, and the PPP’s veto under the previous system went too far, there is a valid concern about the CIO’s independence from the president. To address this concern, changes to how the CIO’s Director General is selected are required.