[Viewpoint] Courts must make just decisionsRecently the media described the disagreements between a court and prosecutors over the release of documents on the Yongsan tragedy as being full of “confrontation and discord” and used expressions like “war clouds hanging overhead.”
In another matter, we have the acquittal of lawmaker Kang Ki-kab. Not only prosecutors and the court have disagreed about the decision, but the public has weighed in online.
Disagreements or arguments between courts and prosecutors are a desirable phenomenon that can only be seen in a country with an advanced justice system, as long as they do not involve slander or malicious attacks.
We can rest assured that it’s a good thing when compared to the time when the courts and prosecutors colluded to infringe on the basic rights of citizens.
In the case of Yongsan, prosecutors have been refusing to release investigation records relating to the tragedy.
They argued that many sections discuss the command hierarchy within the police agency and include national secrets. They argue that if those records are released, they are likely to have detrimental effects on security.
The prosecutors are awaiting a decision on the constitutionality of the matter by the Constitutional Court.
The lower court will say that it ruled on the release of the investigation records according to the law.
However, the rush to get a ruling by the Constitutional Court leaves a bitter taste in my mouth.
Scholars and working professionals who had hoped for a clear constitutional decision on the release of the investigation records and the scope of the release will surely be disappointed by this process.
In the other matter, public opinion is divided on the acquittal of lawmaker Kang Ki-kab.
A judge made a decision in accordance with what he sees as the law and his conscience. Yet, if the ruling is simply one person’s arbitrary interpretation of the law or goes against commonly held principles such as the experience or common sense of the citizens, it cannot have democratic legitimacy.
When the speaker of the National Assembly exercises his authority granted by the National Assembly Act and the secretary general receives an order and directs it to the staff, the job should be done with consistency and continuity.
Order in the National Assembly should be maintained as long as lawmakers continue a demonstration as a means to protest handling of bills. So it is not convincing to decide that the execution of a duty was discontinued because a lawmaker was “taking a break” or “reading newspapers.”
Moreover, lawmakers are not allowed to break rules simply because they were “excited.”
It is against common sense to rule that a violent crime, especially committed in a state of excitement, should be excused.
Meanwhile, in a similar case in 1969, several Japanese National Assembly members got into a scuffle. While they momentarily lost their tempers, the incident did not result in violence and the High Court of Tokyo ruled that the lawmakers were not guilty. They called the incident regrettable and pathetic, but said that because the lawmakers showed restraint they never forgot their status as politicians and representatives of Japan. The lawmakers were not punished because they were not violent.
The Korean National Assembly is now divided over the Sejong City project, with the ruling and opposition parties not willing to yield even an inch. Tensions between the two camps has the potential to turn into a bloody affair at anytime.
However, the National Assembly has been under control and is constrained by certain limits. Citizens trust the National Assembly lawmakers just like they did in Japan.
As long as the National Assembly does not betray the trust of the citizens, “action in moderation” can be justified under the criminal law.
However, the act of forgetting one’s status as a lawmaker cannot be forgiven. Moreover, when lawmakers do ignore their status as representatives everyone knows about it because their fights are captured by TV crews.
Discontent over a court’s ruling can be corrected through an appeal or objection procedure. However, citizens always expect a just decision in the initial trial.
Exercise of authority by a prosecutor or a judge can come under scrutiny by citizens at anytime. That’s why the summary of a decision has to be made public, even if it is a primary ruling.
It might be the authority of a judge or prosecutor to exercise the power of prosecution and trial, but the ultimate decision must be shared with citizens.
At the end of the last year, the Chief Justice of the Supreme Court emphasized that in order for the judiciary to win the trust of the citizens, judges need to make convincing decisions through appropriate communication with citizens, and his advice is still valid.
*The writer is a professor of law at Sungkyunkwan University.
Translation by the JoongAng Daily staff.
by Roh Myung-sun
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