August 14, 1998

SOME OBSERVATIONS ON THE TRIAL OF

KIM IN-HO AND KANG KYONG-SHIK

Author: Prof. Tong Whan Park, Department of Political Science, Northwestern        University, Evanston, IL 60208, USA

Background:  The author has been commissioned by Asian Survey (an academic journal published by University of California-Berkeley) to report on the developments in Korea for 1997 and 1998.  The 1997 report was published as Park, Tong Whan, "South Korea in 1997: Clearing the Last Hurdle to Political-Economic Maturation," Asian Survey, 38:1 (January 1998), pp. 1-10.  Since an important theme underlying the author"s report on Korea is democratization■democratic consolidation, in particular■the trial of Kim In-ho and Kang Kyong-shik is pertinent to his analysis.

The remarks contained herein are the author"s personal observation as a student of politics, and are in no way intended to influence the outcome of the trial.  In fact, the author has purposefully avoided access to the any written records of court proceedings.  This report is solely based on his reading of Korean newspapers and observation of some sessions of the trial.  To repeat, it is not the intention of the author to comment on the substantive merit of the case.  Instead, it is an attempt to place the trial in the larger context of Korea"s ongoing efforts at democratization.

Permission to use: This report does not contain any privileged information.  Inasmuch as it is a summary of observations by a political scientist, the report may be seen as belonging to the public domain.  Due to the tentative nature of the report■the trial is likely to continue for another several months, however, citation or quotation of the report is not permitted without the author"s written consent.

Report as of August 14, 1998

WHAT IS THE NATURE OF THE TRIAL?

Two high-ranking officials of the Kim Young-sam administration are being tried in Seoul■Kim In-ho, former presidential economic policy secretary and Kang Kyong-shik, former Deputy Prime Minister of Finance and Economy.  Though they have been charged for a number of criminal offenses associated with their respective positions, the nature of the trial is not clear at all to this observer who has been following the developments in Korea"s political economy for the last three decades.  Is this the case of a "Korean Policy on Trial" as The Asian Wall Street Journal opines (July 22, 1998)?  Or is it an attempt to convict the "criminals" who have brought economic difficulties to Korea?

If the former, current court proceedings are anything but.  So far, the prosecution has harldy made any attempt to show that the specific policy(ies) made/recommended by the defendants caused the foreign currency crisis of 1997.  Instead, all the government is trying to establish seems to be that the defendants were negligent in their duty to inform the ultimate decisionmaker, president, who had been suspected to lack intellectual faculty to fathom complex economic issues.  If the prosecution stays with this approach, it would not likely win the case as negligence is next to impossible to prove beyond reasonable doubt.

Should the prosecutors change direction and attempt to put the policy itself on trial, they will have an even weaker footing.  In representative democracies, it is not customary to try a policy for its alleged failure.

A more detailed discussion of these two possible approaches by the prosecution is in order.

NEGLIGENCE, COVER-UP, OR ROUTINE DECISIONMAKING?

The prosecutors want to show that the defendants were negligent in their advisory duty to the president.  They would love it even more, if they could find a hint of cover-up by the defendants, either by underreporting the magnitude of foreign currency shortage or causing undue delays in upward flow of reports.

Before proving the negligence or cover-up, it is imperative for the prosecution to demonstrate that the damage was done to the nation"s economy because of such acts.  It will be an almost impossible task because it would involve the exploration of hypothetical questions of "what if."  For example, what if the Kim Young-sam administration had decided to seek IMF"s funding, say, two weeks or a month earlier?  Had the resulting bailout package been significantly different?

Economists would have a field day debating this question.  Should the prosecution decide to bring in expert witnesses, the defense can counter with their own experts. (Of course, there is a question of whether any reputable economists would testify on defendants" behalf given today"s political climate in Korea.)  While it is hard to prejudge the outcome of such a hypothetical debate, it is possible to speculate that the Kim Dae-jung administration, Lim Chang-yul in particular, may also become implicated in the process.  This is because the specific terms of the bailout were negotiated by Lim, successor to Kang and now governor of Kyonggi province elected as the candidate of DJ"s party.  It should also be mentioned that, as presidential candidate and later president elect, DJ was closely consulted in the negotiation process.

Due to the difficulty of establishing a causal link between negligence and damage, the prosecution may try to skirt the issue, and emphasize the aspect of negligence only.  But it would be like convicting a medical doctor who took his time preparing for surgery for his negligence when such a delay did not affect the patient"s condition or speed of recovery.

Let"s suppose that the prosecution has come up with a plausible theory that negligence, if any, could have aggravated the economic crisis.  They will then be faced with a daunting task of proving that there was indeed negligence and/or cover-up by the defendants.  Negligence will be difficult to prove and cover-up would be even more so.

All that the defendants have to show is that they had followed the established routine in their handling of the crisis.  As shown in court proceedings, the defendants, like any high-ranking bureaucrats, are known to have left an elaborate paper trail. (Kang had even kept a detailed daily journal in his notebook computer, which is being investigated by the prosecution as evidence.)  Hence they should have hardly any problem in persuading the court about the way they discharged their duties.  The court may accept the defendants" plea that they had tried their best to resolve the crisis in the nation"s best interest.

Just in case that the prosecution dug up some incidents which may be construed as implying the defendants" negligence, the defense attorneys may successfully attribute them to errors in judgment or incompetence, both of which form shaky grounds for criminal conviction.

CAN A POLICY BE PUT ON TRIAL?

Should the prosecution, by any chance, decide to put the policy on trial, it may be a historical first in representative democracies.  There are two points to consider if this happens.

For starters, it is not clear whether Kim and Kang can be tried for failed policies.  Neither is an elected official directly responsible to the people.  Kang is a National Assemblyman, but he was indicted for his role as Deputy Prime Minister of Finance and Economy.  Both Kim and Kang served at the pleasure of the president.  If any policy is to be put on trial, it is the elected president who should be questioned.  (Again there is the unresolved question of whether Kim Young-sam"s policy was a direct cause of the nation"s economic difficulties.)

Supposing that the prosecution forces its way by putting the policy on trial, it will be an object of study by both constitutional scholars and political scientists.  A little historical background should help explain this point.

In direct democracies practiced by ancient Greek city states, all citizens■except for slaves, foreigners, and women■formed the legislature and participated directly in the state"s political affairs.  They were actively engaged in both decisionmaking and details of administration.  As such, they were also held responsible in their acts as decisionmakers.  When the policies advocated by a particular person brought injury to the polis, he would have to answer for it.  The punishment varied according to the severity of injury and other surrounding circumstances.

The case of Thucydides (460-398 BC) provides a clear illustration.  Thucydides is, of course, famous for his book The Peloponnesian War, a classic on the history of war between Athens and Sparta that had lasted almost thirty years.  Thycydides was charged with the task of defending Ampipolis, but lost it to the Spartans.  Though this incident was not a fatal blow to Athens, the loss shocked the Athenians resulting in a forced exile for Thucydides.

The demise of Greek city states also meant an end to such direct democracies. With birth of nation-states in the seventeenth century, a tradition of representative democracy was established.  Policy failures would result in the change of government■the ultimate trial by the people.  Unless criminal offenses were committed, policymakers were shielded from prosecution.  Korea"s criminal code also honors this tradition.  Just look at the stipulation that protects National Assemblymen from arrest even for a criminal offense while the legislature is in session.

Consequently, asking the court to punish failed policies, while there is no proof of criminal offense, should be a first in the history of representative democracy.

How would the rest of the world interpret it?

Would they see Korea as practicing a participatory form of democracy, similar to that upheld by the Athenians in 400 BC?  Even with the information revolution that connects all the citizens of a country, such a direct democracy would be not only totally impractical but also a gross violation of Korea"s constitution.

Consequently, the rest of the world may view it as a form of political witch hunting.  Had the prosecution wished to try failed policies, it should have placed the former president on the witnesses" stand.  What could it hope to gain by indicting his advisor and minister on a negligence charge who, in final analysis, might be shown to have done their job?

Though the trial may have little legal merit by itself, some could conjecture that it is a political instrument with which the new administration wishes to vent the public"s frustration and anger. With a soaring unemployment and the precipitous drop in the quality of life, the popular mood could turn against the government"s policy of restructuring that would require even more sacrifice from the people.  By continuing the trial of Kim and Kang for several months, the administration may in essence earn a little breathing room.  Outcome of the trial might be of secondary concern.  As long as a couple of "whipping boys" are "rotting in prison," government should be able to claim that justice is being done and to make people believe that those in the previous administration are responsible for the economic crisis.