Independence of the judiciary faces headwinds amid radical arguments

Independence of the judiciary faces headwinds amid radical arguments. September. 02, 2017 07:34. tao4@donga.com.

On an intranet bulletin board open for Incheon District Court on Wednesday, Judge Oh Hyun-seok posted an article, which reads "Trial can also be considered as politics. There should not be a case when the interpretations of the supreme court, common beliefs, and the public opinion have to be worshipped or copied, as they merely represent the ideas of the others." Judge Oh is currently a member of the "Academy of Human Rights Law," a group of liberal judges. As a former member of the "Blacklist of judges investigation committee," Judge Oh requested the investigation be reopened and staged a hunger strike which lasted around 10 days.

Based on the clause that the trial is made in accordance to the law and his conscience, Judge Oh has unfolded his extreme arguments. The freedom of conscience as the basic human rights is guaranteed by the constitution but cannot be the same as the one which a judge refers to at the court. Here, conscience means subjective and logical conscience as a judge, or the "conscience of judge." People will lose confidence on constitutionalism when defendants find themselves guilty or not guilty according to which judge they stand in front of.

Moreover, Judge Oh should be criticized for expressing his alleged ignorance to supreme court precedents. Indeed, unlike nations that follow the Anglo-American Law, Korea complies with the Continental Law and does not recognize the legal binding force of precedents. Nevertheless, the precedents of the highest judiciary body are still honored with full respect from legal experts who practice law in countries where Continental Law rules. As a veteran judge who marks his 10th year this year, his recent remarks are no more than a careless remark.

At the current time, the Court Organization Law and the Code of Ethics strictly prohibit judges from involving in politics and always remain politically neutral. Indeed, there will be only few judges in the judiciary who will agree with Judge Oh. However, concerns are heightening that the Moon Jae-in administration is seeking to bring a power shift in the judicial branch. In order for the court to stop an individual from deviating and becoming a politically lopsided mainstream in the judiciary, the judiciary itself should take control and urge their judges to maintain self-disciplined.

Numerous cases not filtered by the politics are handed over to the judiciary in Korea. This is the so-called "judicialization of politics." Hence is the reason why there are possibilities of conflicts and collisions between ideas and generations even in the judiciary, as more trials are often linked with political logic. Nonetheless, the "politicization of judiciary" is still far dangerous than the "judicialization of politics." After all, jurisdiction is the final procedure to solve social conflicts and disputes. Therefore, the "judicialization of politics" might boomerang into an intervention or objection from politicians or civic groups. This may threaten the underlying fundamentals of the independence of the judiciary and further topple the constitutional system which rests itself on top of the three pillars of legal, administrative and judicial powers.