[Outlook]True independence for judges

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[Outlook]True independence for judges

The key question in the scandal involving Supreme Court Justice Shin Young-chul is whether the actions for which he is being investigated were a legitimate exercise of his judiciary and administrative rights, in accordance with the law and accepted practice, or if he had unfairly interfered in court trials.

Although the results of the investigation have not yet been revealed and the actual facts are still unknown, every day some people in the media and civic groups are urging Justice Shin to step down.

The judge has asked for time to think, implying the possibility of a voluntary resignation.

Absent an explanation or context, if you only listen to the side of the story that alleges the former head of the Seoul Central District Court had influenced trials by putting pressure on the judges in charge, you would naturally think it was wrong that a chief judge interfered with the independence of judges and fair trials.

Everybody knows that it is important to make sure trials are free from influence within the judiciary.

When trying a case, a judge should not receive orders from the head of the court or the chief justice of the Supreme Court.

The chief justice of the Supreme Court and the head of the court are not allowed to issue orders or interfere with trials.

However, if one thoroughly examines the e-mails that Justice Shin allegedly sent to judges and the situation at the time, it seems wrong to push him into a corner and to urge him to resign before the results of the investigation are released. We should not embark on a witch hunt.

The press has not been handling the issue fairly.

It reports only that when Shin served as the head of the Seoul Central District Court, he exerted pressure on judges in charge of trials related to illegal candlelight rallies; that the scandal is sending ripples throughout society; and that people within the judiciary and civic groups are demanding that he step down.

Most media outlets have not bothered to find out the contents of the e-mails in question, or what was truly going on when they were sent.

As the trials were delayed because a petition was filed with the Constitutional Court on whether a ban on nighttime rallies is unconstitutional, Shin suggested it would be good to go through standard procedure with the trials, in accordance with the current law.

He wanted the trials to proceed without delay and he was concerned that a suspension might do society harm, for instance, causing illegal rallies to becoming widespread.

This can be understood as the type of administrative move that any head of the court could do.

The actual facts will become known only when the investigation results are revealed.

In the guise of ensuring that the judiciary is independent from politics, it is not right to condemn him for being politically inclined and to demand his resignation just because of a couple of things that have been revealed so far.

The judiciary must be free from pressure not only from the administration and the political circle, but also from different groups or political forces.

The issue of the e-mails or of leaving the candlelight rally trials to a certain court didn’t surface when these affairs actually took place, or when Shin was going through his confirmation hearing at the National Assembly.

But after Shin was inaugurated as a Supreme Court justice, some media outlets started to pay attention to these cases, making one suspicious of their intentions.

The major reason some are demanding Shin’s resignation is concerned with guaranteeing the independence of judges and the fairness of trials.

However, it is hard to deny that judges are often threatened by some civic groups or the press, a serious risk undermining the independence of the judiciary and judges.

A judge making rulings in accordance with the Constitution, the law and his conscience is more than an order coming from the people; it is a constitutional duty not to give in to pressure, rather than a right given to him by the Constitution.

Therefore, collective acts that in effect deliver psychological threats to judges while shouting for their independence can weaken the judiciary, which is regarded as the last bastion of democracy.

The Shin case must not be used to undermine the judiciary for unfair political purposes under the pretext of ensuring judges’ independence.


The writer is a professor at Sungkyunkwan University School of Law. Translation by the JoongAng Daily staff.

by Kim Min-ho

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