[Viewpoint] Overstepping judicial authority

Freedom of speech is a basic right guaranteed by the Constitution for all citizens. For a democracy, free speech is a necessary, but not absolute right. A judge with 20 years of experience is aware of this basic fact for sure.

Power is a sword. It can be used for good purposes, but if abused, it could be fatal. The national government’s power is divided into the executive, legislative and judicial branches, with checks and balances to prevent concentration and abuse of power. The Constitution of the Republic of Korea states that legislative powers belong to the National Assembly, executive powers to the government headed by the president and judicial powers to the courts comprised of judges.

A sitting judge plans to propose a task force on the Korea-U.S. free trade agreement under the Supreme Court’s jurisdiction. Because the judiciary has the final say on the legal interpretation of controversial clauses in the Korea-U.S. FTA, including the investor-state dispute settlement (ISD) clause, the judiciary needs to provide guidelines. He says the task force would review whether there are any unfair elements in the FTA, and, if so, how to correct them. It would also consider whether the ISD clause is legitimate. Over 120 judges expressed their support for the proposal.

Generally, a judge is an expert on laws. However, a judge may not be thoroughly knowledgeable in all legal matters. And judges are not the only legal experts. Just as doctors specialize in certain fields of medicine, such as internal medicine or surgery, legal professionals have their own specialities, such as civil, administrative or international law.

In order to be recognized as an expert, one should have sufficient field experience. Or one can prove expertise through research and publications. In the court system, there are many experts on the Constitution, civil law, commercial law and criminal law. However, hardly any sitting judges have expertise in international mediation and trade law through field experience or recognized research.

The Constitutional Court of Korea exercises its jurisdiction in five ways: adjudication of the constitutionality of statutes, impeachments, the dissolution of political parties, competence disputes and constitutional complaints. The Constitutional Court, in short, decides whether a statute violates the Constitution of the Republic of Korea.

The constitutionality of agreements that have legal effect is also determined by the Constitutional Court, not the ordinary courts of the judicial branch. There are no legal grounds in the Constitution or any other laws that give ordinary courts the right to provide guidelines for the Korea-U.S. FTA and ISD. If the judiciary forms a research team and provides an official opinion publicly, it would go beyond its given authority.

Why does the judiciary want to take a job that is outside its job description in terms of both speciality and jurisdiction? Judges speak through their decisions. Judge have freedom of speech. But, they are expected to display greater self-control. When judges expose biased personal opinions on controversial and sensitive issues, they may limit the rights of citizens to fair trials and evoke distrust of the country’s judiciary system as a whole. The judge who publicized his personal opinions on the FTA in a media interview was imprudent, unless he was intentionally trying to act in contradiction to the principle of separation of powers.

A judge may be against the Korea-U.S. free trade agreement, and, to be fair, we cannot be entirely sure that the concerns raised about the FTA’s ISD clause are entirely unfounded. The clause allows cases that would normally be brought between nations to be filed as a suit between a nation and an individual. However, refusing to include the ISD provision in the FTA does not make sense since Korea has initiated the insertion of ISD clauses in free trade agreements with other countries. Nevertheless, the president promised a renegotiation of the ISD provision. The issue needs to be resolved by the citizens, the National Assembly, the government and the president. It is not something for judges to decide.

*The writer is a professor of international trade law at Sogang University School of Law.

By Wang Sang-han