[VIEWPOINT]Judges must remain independentIn less than two months, we are going to have five new justices of the Constitutional Court. As seen by the enormous social impact caused by recent decisions of the court ― that the presidential impeachment and the law on the relocation of the capital from Seoul were unconstitutional; that certain articles of the newspaper act were against the constitution, and the patriarchal family head system should be abolished ― the court’s decisions have the potential to create big social and political waves.
Using the French Revolution as momentum, mankind tried to change the divine order to one based on the rationality of the human being. And that order took the form of the rule of law, based on parliamentarianism. Society developed further and the era of the welfare state arrived, initiated by government technocrats. All of these changes were made on the basis of scientific rationalism of the human being.
Now that the world has entered an era of global competition, the welfare state is on the brink of a crisis and mankind is facing the collapse of its traditional values.
However, there is no change in the fundamental value that democracy should be safeguarded and promoted. Under such circumstances, the Constitutional Court has stepped forward to resolve various social conflicts peacefully and to protect democratic values.
If we see it from the point of view of positivism, the Constitutional Court should enforce the necessary procedures that each and every interest group is required to take, as well as check the establishment’s power.
If we see it in the aspect of natural law, on the other hand, the Constitutional Court plays the role of protecting fundamental human rights and defending the rights of the minority from the tyranny of the majority.
There is no need to reiterate that the duty of the five new judges of the Constitutional Court lies in meeting the demands of the times and implementing them faithfully.
The most fundamental principle is that their political and social neutrality should not be threatened, under any circumstances. They should not try to cater to the taste of the people who nominated them or the groups that recommended them.
At the same time, it is necessary for them to continue to seek the truth without being swayed by the pressures of public opinion.
Then, what contribution did the administration and the people make to help the Constitutional Court, the last bastion of democracy, play its role? The judges of the Constitutional Court are also human beings and they cannot help but be weak in the face of boundless nature and infinite truth.
Therefore, we should not force them to maintain the attitude of saints beyond what we expect from average people.
Our politicians should first understand that the modern age is the era of “politics under judicial power,” where politics is practiced in the boundaries of the law and politicians are judged by the judiciary when they are suspected of violating the law.
Despite that, politicians have reacted against the decision of the judiciary whenever a decision was made against their political interest and even threatened to reform the Constitutional Court or reshuffle the judges.
Such negative attitudes, which surfaced intermittently in the past, were caused by a lack of understanding of modern democracy, that “politics comes under judicial power.” They were also evidence of the immaturity of Korea’s democracy.
When an issue, on which group interests depend or over which political views collide, becomes the subject of a decision of the Constitutional Court, some of our citizens make the court’s front yard an arena for physical struggle between the demonstrators themselves or between demonstrators and the police.
They often show anti-constitutional and undemocratic attitudes by paralyzing the function of the court as a peaceful troubleshooter of social conflicts.
They also reveal attitudes and actions that violated peace and democracy through the press and Internet sites. Such attitudes and actions put inappropriate psychological pressure on the judges of the court and made it difficult for the court to implement its duties.
The success or failure of the appointment of five new judges depends on how suitable the candidates are for safeguarding the democratic system. That has nothing to do with political calculations.
And the status and credibility of the court depends on how independently the judges make their decisions in accordance with the duty of the times, regardless of their relationships with their nominators.
* The writer is a professor of law at Sung Kyun Kwan University. Translations by the JoongAng Daily staff.
by Lee Kwang-youn