Debate is running high in legal and political circles over the regular attendance of the heads of the Major Crimes Investigation Agency and the prosecution service at Cabinet meetings. President Lee Jae-myung says there is no problem, arguing that "state administration naturally falls under the authority of the president and the prime minister." Legal professionals, however, voice concern that the practice "could end up damaging independence."
According to legal sources on the 21st, Major Crimes Investigation Agency Commissioner Kim Ji-yong attended a Cabinet meeting held at the presidential compound on the 20th, presided over by Lee. It was Kim's first appearance at such a meeting. Since the agency's launch, Vice Commissioner Jeon Jong-min, then acting commissioner, had attended the Cabinet meetings held on the 6th and 13th of this month. Lee Jung-hyun, deputy chief of the prosecution service and acting prosecutor general, who took office on Sept. 23, has also kept his seat ever since the first Cabinet meeting he attended on Sept. 29. Commenting earlier on the attendance of the acting heads of the two agencies, the president said, "It is very important to share the general direction and policies of state affairs." He added that while "it is not desirable to tell them what to do on individual cases, investigative agencies are also carrying out duties entrusted to them for the people and the state." He stressed, "Government ministries also handle licensing and patents and other work directly tied to the interests of the people. It is not right to exclude them from sharing the direction of state affairs on those grounds." The argument is that their attendance poses no problem because they are agencies under the president's authority pursuant to Articles 11 and 18 of the Government Organization Act. Under Article 11, the president, as head of the government, directs and supervises the heads of all central administrative agencies in accordance with statutes. The president may also suspend or cancel orders or dispositions by the prime minister or the heads of central administrative agencies if they are found to be unlawful or improper. Article 18 of the same law states that the prime minister, acting under the president's orders, directs and supervises the heads of each central administrative agency.
The Cabinet Meeting Regulations, a presidential decree, contain no provision barring their attendance. Under Article 8 of the regulations, which covers those seated in attendance, participants besides Cabinet members include the presidential chief of staff, the national security adviser, the senior presidential secretary for policy, the head of the Office for Government Policy Coordination, the minister of personnel management, the minister of government legislation, the commissioner of the Ministry of Food and Drug Safety, the head of the National Data Agency, the head of the National Intellectual Property Office, the chairman of the Fair Trade Commission and the chairman of the Financial Services Commission. However, when the president, as the chair, deems it necessary, the heads of agencies under central administrative bodies and public officials in important posts may be seated in attendance, or relevant experts may be invited. The chair may also have those in attendance speak on state affairs or hear the views of relevant experts when deemed necessary. The heads of the Major Crimes Investigation Agency and the prosecution service may take part, but with the condition that it be "when necessary."
Legal professionals agree that while there is no legal issue, having the heads of agencies responsible for investigations and for filing and maintaining indictments attend Cabinet meetings on a regular basis is somewhat "undesirable." Even if the stated purpose is to share policy direction, the practice could undermine the political neutrality and independence of those agencies. They also argue that because it risks adding unnecessary controversy, it would be better to maintain the communication channels set out in existing laws, such as the act on the organization and operation of the Major Crimes Investigation Agency and the Prosecution Service Act.
One lawyer and former judge stressed, "They could attend if their views are needed on a specific matter or an explanation is required, but making it a regular practice risks affecting the judicial functions these agencies hold, such as investigations and indictments." The lawyer added, "Given that the president is the appointing authority, they could develop the mistaken notion that they must 'make sure to carry out' whatever the president says at a Cabinet meeting." The lawyer went on to criticize the arrangement, saying, "In politically sensitive cases, even words such as 'investigate thoroughly' or 'be careful in your judgment' can have an influence," and that "the idea that investigations and the filing and maintaining of indictments belong to the realm of administration could even lead to a misunderstanding of the separation of powers."
A lawyer who formerly served as a chief prosecutor said, "Once regular attendance at Cabinet meetings is set as the standard, they will have no choice but to keep taking part," adding that "this runs counter to the chain of command written into the law, and it breaks the standards and principles that keep investigative and prosecutorial agencies politically neutral and independent." Under the law, the justice minister may direct the prosecutor general and the interior minister may direct the Major Crimes Investigation Agency commissioner on specific cases, and the practice runs against that, the lawyer said. Another lawyer also said, "It is fine to call them in to hear their views on a specific matter, but having them attend every time is not desirable," explaining that "what they hear directly from the president could influence the judgment of these agency heads." The lawyer added, "Placing the justice and interior ministers above the prosecutor general and the Major Crimes Investigation Agency commissioner serves as a so-called breakwater that softens direct orders from the president to them," and stressed that "making them attend Cabinet meetings as a matter of routine can only erode the independence of the newly launched Major Crimes Investigation Agency and prosecution service."
