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[Feature] Judiciary at critical juncture for reform
Extensive reform unavoidable in light of massive power abuse scandalBy Jo He-rim
Published : Sept. 30, 2018 - 17:32
It is the first time the court has granted warrants requested by the prosecution against the former top court figures since the prosecutorial investigation kicked off in June, amid public calls for thorough investigation into the judiciary.
Saddled with a massive power abuse scandal, the celebration of the 70th anniversary of the country’s judiciary last month was subdued. Amid snowballing allegations a former Supreme Court chief justice had wielded his authority to make inappropriate deals with the presidential office of Park Geun-hye, the judiciary is at a critical juncture, as it faces mounting calls for complete reform to regain the trust of the people.
At a ceremony marking the 70th anniversary of the judiciary, President Moon Jae-in made his first direct reference to the power abuse case.
“The power abuse scandal in the judiciary has rocked the court from its roots and the court has lost the people’s trust. Allegations should be clarified and if wrongdoings are found, the judiciary, itself, should make it right again,” Moon said at the event held at the Supreme Court in Seoul on Sept. 13.
“The order from the people for the judiciary to stand completely independent is also an opportunity that the people have granted to the judiciary to reform itself.”
Some 250 high-ranking figures, including the Constitutional Court president and former top court chiefs, attended the event. Former Supreme Court Chief Justice Yang Sung-tae, who is suspected of abusing his authority, and judges who served under Yang were not among them.
“Unimaginable” abuse of power
After a long silence, incumbent Supreme Court Chief Justice Kim Myeong-su announced a comprehensive reform plan, including the abolition of the National Court Administration, the entity at the heart of the power abuse scandal.
Following Kim’s vow to support the prosecutorial probe into the judiciary at the 70th ceremony -- the first comment he had made after his initial promise for reform in May -- the court also issued the search and seizure warrant for Yang’s car and former Supreme Court justices Ko Young-han, Park Byeong-dae and Cha Han-sung’s home and offices.
Allegations against Yang were first raised early last year, as suspicions rose that the NCA had conducted secret inspections into judges who were deemed critical of Yang’s office.
A fact-finding mission and additional investigation team were launched at the time to look into alleged meddling in court affairs and the creation of a blacklist of judges. A new investigation panel, the third of its kind, was created in February.
From evidence found in the series of investigations, it became clear the judiciary under Yang had used politically sensitive trials as bargaining chips to win favor from the presidential office. These findings triggered the prosecution to embark on a rare investigation into the judiciary in June.
Although Yang continues to deny the allegations, more revelations appear to confirm Yang had indeed taken actions he called “unimaginable” for a veteran judge like himself in his denial.
A court case involving elderly Koreans who were forced into labor during Japan’s colonial rule against two Japanese companies was among the trials Yang allegedly manipulated to strike deals with the presidential office under Park. Yang deliberately delayed the top court’s ruling, as Park sought to improve ties with Japan.
The former top court chief is also suspected of weighing in to quash a ruling favorable to laid-off temporary female workers of the KTX high-speed rail system. Yang is suspected of sending back former state spy agency chief Won Sei-hoon’s case after he was given a jail term for violating the election law, among other allegations.
In addition to consorting with the government on trials, Yang allegedly lobbied lawmakers, and even journalists and popular TV personalities, to comment favorably on his plan to establish a new appellate court.
The NCA appears to have played a key role in carrying out Yang’s orders, according to hundreds of pages of documents found on seized computers and USB devices.
Prosecutors also suspect the top court under Yang of having raised 350 million won ($313,000) from district court budgets and doling out the money to district court chiefs and senior judges as “incentives,” among other expenses.
Reform measures slow in coming
On Sept. 20, Supreme Court Chief Justice Kim announced the abolishment of the NCA. In its place would be a new entity to only serve the fundamental purpose of handling administrative work. The NCA, under the Supreme Court, manages the appointment of personnel and budget.
Although a stint at the NCA is perceived as a fast-track to promotion among judges, Kim has vowed to reduce the number of judges working full-time at the NCA or the proposed new administrative entity, until there are no judges at the organization by the end of his term. Kim’s term ends in September 2023.
Kim’s first reform proposal came amid criticism of his inaction as top court chief. He had remained silent over the scandal for about 100 days after he first promised his cooperation and support for a thorough investigation into the alleged irregularities in May.
Many welcomed Kim’s first reform move, but Kim faces demands for stronger action in dealing with those who have abused their power.
At the court’s 70th anniversary celebration, Kim reiterated his pledge of support to the prosecution.
“I firmly believe a thorough fact-finding investigation should be conducted and those responsible (for the irregularities) should be punished accordingly,” Kim said. “While I cannot weigh in on the trials, I will do my best to aid the prosecutorial investigation, administration-wise.”
Opinions are divided over Kim: Some see him as weak-willed, while others see him as trying to avoid wielding authority like Yang. Within the court, Kim has been attacked by judges for “neglecting” their independence and allowing external powers to intrude into the institution. Meanwhile, the public has criticized his inaction.
Aside from the first search and seizure that took place Sunday, the court had rejected most warrant requests against high-ranking former and incumbent judges, citing lack of evidence on the claimed charges. Investigators had complained the court was not providing requested data and reports, leaving them with little evidence to work with.
Skeptical of the court’s ability to reform itself, there have been calls for the launch of a special tribunal for the abuse case, stemming from concerns the judges might not be able to make fair rulings against their colleagues. The ruling Democratic Party of Korea has also brought up the idea of conducting a parliamentary investigation into the judiciary.
On Sept. 17, 137 law professors issued a statement demanding the National Assembly conduct an investigation and legislate a new law to launch a special tribunal to look into power abuse by the top judicial authority.
“(The case) is clearly a crime violating the Constitution, which protects the judges’ authority and independence,” the statement read.
Turning over a new leaf
Experts say reform of the judiciary should start with the judiciary breaking out of its shell and casting off the hierarchical structure.
“The pursuit of ‘pure-blood’ backgrounds that creates elitism, and the concentration of power over personnel in the Supreme Court chief justice and the NCA, are some of the factors that have created the current system, which is prone to abuse,” said Han Sang-hee, a professor at Konkuk Law School.
“One of the biggest problems often discussed is the concentration of power in the Supreme Court chief justice. The NCA plays the role of being the limbs of the chief justice, and we witnessed the worst-case scenario of the system in Yang’s case,” professor Park Chan-un of Hanyang University of Law told The Korea Herald.
The long-standing proposition that the executive, legislative and judicial branches of the government are independent of each other may also have been used as a “shield” by the judiciary.
“While the judges called for the independence of the judiciary, they voluntarily gave up that independence and became slaves of the authority, or stood in the front line of making deals with the administration,” Oh Ji-won, a judge-turned-lawyer said in a parliamentary discussion.
While the “independence of the judiciary” has often been brought up to protect its authority from other government bodies, Korea’s Constitution only stipulates the protection of the independence of individual judges and not the court, explained Park.
“The phrase comes from the old days, when the authoritarian government held more power over the judiciary. But times have changed, and Korea is a democratic country. The court is already independent of the legislative and the executive (branches),” Park said.
“The independence of the judiciary and the independence of individual judges are two different ideas, and we should now work for the latter.”
Protecting the independence of the judges means providing an environment in which judges can deliver honest rulings according to the law and their conscience, Park said.
He added that while the independence of judges in trials should be protected, the court still belongs to society, and it should still be watched and kept in check by the people and the media.
Trust in the country’s judiciary appears to be low. According to a poll by Realmeter in June, 63.9 percent of 500 respondents said they did not trust rulings delivered by the judiciary, while 27.6 percent said they trusted the rulings.
The survey also asked respondents to grade the degree of reliability, and the judiciary scored 36.2 out of 100.
“Efforts for the reform of the judiciary should focus on how to establish a new judicial structure and legal system that reflect the democratic demands of the people. The judiciary should think about ways to share its authority with the people,” Han of Konkuk Law School said.
By Jo He-rim (email@example.com)
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