'Unconstitutional': Shocked politicians, prosecutors resist Friday's bill as debate continues

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'Unconstitutional': Shocked politicians, prosecutors resist Friday's bill as debate continues

Published: 29 Sep. 2025, 14:07 Updated: 29 Sep. 2025, 19:24

Audio report: written by reporters, read by AI

A barrier is seen lowered on the entrance to the Supreme Prosecutors' Office in Seocho District, southern Seoul on Sept. 28. [YONHAP]

The aftershocks are continuing from the National Assembly’s passage of a bill to abolish the Prosecution Service, led by the Democratic Party (DP) on Friday.

Former justice ministers and prosecutors general declared Sunday that they would file a constitutional complaint once the law is promulgated, calling the bill “clearly unconstitutional.”

‘We will use all available legal means’

“We have repeatedly emphasized that the government organization law amendment that abolishes the Prosecution Service is unconstitutional and must be withdrawn,” said the Prosecutors’ Alumni Association and a group of former justice ministers and prosecutors general in a joint statement Sunday.

“Nevertheless, the DP pushed the bill through the National Assembly,” the statement read. “We declare our intent to use every possible means to correct this antidemocratic and antihistorical revision.”

The Prosecutors’ Alumni Association is composed of retired prosecutors and is currently chaired by Han Sang-dae, who served as Prosecutor General from 2011 to 2012. Seven former justice ministers, including Kim Jong-goo and Kim Kyung-hwan, and seven former prosecutors general, including Song Kwang-soo and Kim Jong-bin, joined the statement.

Lawmakers vote on a sweeping government reorganization bill that includes a provision to abolish the Proseuction Service at the National Assembly in Yeouido, western Seoul on Sept. 26. [YONHAP]

They strongly criticized the ruling bloc, saying it was “denying both democracy and the rule of law.”

The legality of the prosecution reform — long debated in legal academia — is now expected to be reviewed by the constitutional Court, which could assess the revision through a constitutional complaint, authority dispute case or constitutional review of the law.

The central constitutional issue is whether abolishing the Prosecution Service and stripping prosecutors of investigative powers violates the Constitution — specifically, whether the existence of the Prosecution Service and prosecutors’ investigative authority is constitutionally guaranteed.

The Supreme Prosecutors' Office in Seocho District, southern Seoul is seen on Sept. 26. [YONHAP]

Is the prosecution a constitutional body?

Article 89, Paragraph 16 of the Constitution states that the appointment of the Prosecutor General must be reviewed by the State Council, while Article 12, Paragraph 3 specifies that arrests, detentions or raids require a warrant issued by a judge “upon the request of a prosecutor.”

Some legal scholars interpret these provisions to mean that the office of the Prosecutor General — and by extension, the Prosecution Service — may be implicitly guaranteed by the Constitution.

While the constitutional Court has never ruled on whether the Prosecution Service is a constitutional body, a frequently cited parallel is a 1989 case where an amendment to rename the Joint Chiefs of Staff (JCS) was withdrawn over constitutional concerns.

The appointment of the chair of the JCS — like the Prosecutor General — is also subject to State Council deliberation under Article 89, Paragraph 16, and changing the title was seen as potentially unconstitutional.

The DP attempted to address this by inserting a clause in the proposed law to establish a new office for indictments under the Ministry of Justice — the body to replace the Prosecution Service — stating that its head would be regarded as the “Prosecutor General” under Article 89, Paragraph 16. However, a report by the National Assembly’s Legislation and Judiciary Committee warned this could “undermine the supremacy of the Constitution by allowing constitutional terminology to be redefined by statute.”

Since there is no precedent for interpreting constitutional terms in this manner, debate over the law’s constitutionality is likely to continue.

Justice Minister Jung Sung-ho said on Sept. 10 that “the Prosecution Service is not a constitutional institution,” while Acting Prosecutor General Noh Man-seok said on Wednesday that he hoped for “a prosecution reform that is successful and free from constitutional concerns,” hinting at potential unconstitutionality.

The Constitutional Court in Jongno District, central Seoul is seen on June 9. [YONHAP]

Constitutional Court: ‘Difficult to conclude’

The constitutional Court has previously commented on the constitutional status of prosecutors — though not the Prosecution Service itself.

In a 2023 ruling related to the “complete removal of prosecutorial investigative powers” — a legislative reform spearheaded by then-Justice Minister Han Dong-hoon — the court stated, “There is room to argue that prosecutors, under the Prosecution Service Act, are not constitutional institutions, though it is difficult to make a definitive conclusion.”

The court limited prosecutors’ constitutional role to their authority to request warrants.

“The Constitution is silent on prosecutors’ investigative powers. It does not logically follow that the constitutional provision granting prosecutors the right to request warrants guarantees broader investigative authority,” the court wrote.

The position mirrored its 2021 decision on the constitutionality of the Corruption Investigation Office for High-Ranking Officials, where it said, “The Constitution does not directly regulate who holds authority for investigation or indictment.”

This article was originally written in Korean and translated by a bilingual reporter with the help of generative AI tools. It was then edited by a native English-speaking editor. All AI-assisted translations are reviewed and refined by our newsroom.
BY KIM JUN-YOUNG [[email protected]]