[VIEWPOINT]Keep judiciary independent

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[VIEWPOINT]Keep judiciary independent

A series of trial-related remarks by the chief justice of the Supreme Court has drawn attention. Many people wonder what the true intention was of his remarks at an appointment ceremony for newly promoted high-court senior judges, following his critical comment on a ruling in the Doosan slush fund case.
The chief justice can naturally have beliefs and a philosophy of his own as an experienced head of the judiciary. But it is doubtful whether it is proper for him to openly criticize the ruling of another judge when a specific case is still pending or to give an ambiguous lecture to newly appointed judges.
This goes for the Doosan case. If a decision by the lower court was unfair, the decision can be corrected by the higher court. That is what different levels of judgements are for. Giving the impression that the chief justice has intervened in the trial presided over by other judges by criticizing the lower court’s decision greatly undermines the independence of a judge. It is the spirit of the independence of judicial rights as stipulated by the constitution that judges should be independent not only from intervention from outside the judiciary, but also from those inside the judiciary, including the chief justice.
The chief justice’s instruction to the newly appointed judges has room for misunderstanding, depending on who the listeners are. While stressing the fairness and universal validity of a trial, he said, “Even if the result is fair and universally valid, this alone cannot constitute a good ruling. You have to bear in mind that a ruling where you cannot feel the warm breath of people can be a lifeless or dead one.” Each listener may accept this instruction differently. A judge should not be a “ruling machine” that applies the law blindly but, in some cases, the judge may lose fairness and equity if he or she makes a decision based on human sympathy. As the core of a trial is the fairness and equity of legal application according to the factual truth, by any means, it is the professional fate of a judge that he cannot always make a humanistic ruling.
Among the chief justice’s remarks, the argument for a “ruling by the people” is very risky. Emphasizing that “a trial should be made in such a way that a majority of the people can be convinced,” the top justice said, “A ruling is made in the name of the people, not in the name of a judge.”
Since all power comes from the public in the constitutional order of liberal democracy, where sovereignty rests with the people, there is no doubt that the rights of a judge come from the public. But the main actor of a trial is the judge, who represents the judiciary in accordance with the constitution, not the public. This is why it is argued that a jury system or a German-style court ruling, in which the public participates in the ruling, is unconstitutional. There-fore, a ruling is made in the judge’s name, not in the people’s name. For a judge to make a decision so as to convince a majority of the public as the chief justice said, the judge cannot help but be aware of the public opinion in each case. But our constitution definitely rules out such a “ruling by the public.” It is a strict order of the constitution that judges should conduct trials independently based on the constitution and law and according to their conscience, not following the opinion of the majority of people. Therefore, judges should not make a ruling to gain popularity by being aware of public opinion. Respecting public opinion and making policies according to public opinion are the roles of the government and the National Assembly, not a principle of trial by court.
Even in the case where a trial is held “in the name of the public” in the German court, this does not mean that a ruling can be made according to public opinion but is simply to stress the rule of law ― that a decision should be made according to the law in the sense that the law a judge applies is enacted in the name of the people. What is important in a trial is finding the factual truth and securing the equality of legal application, not a public opinion that changes from time to time. A trial by public opinion is no different from a ruling by the people and is against the rule of law. Judges are given strong job security and independence as a protective device in order that they can make rulings without being concerned with public opinion.
I hope the chief justice from now on will refrain from making remarks that have room for misunderstanding and contributes to realizing the independence of judicial rights by reflecting on our painful past, when the judiciary failed to keep the independence of judges.

* The writer is a visiting professor of constitutional law at Myongji University. Translation by the JoongAng Daily staff.

by Huh Young
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