Immature separation of powersKANG KI-HEON
The author is a reporter of the industry 1 teamof the JoongAng Ilbo.
The separation of powers is a systematic invention gifted to contemporary times. British political philosopher John Locke (1632~1704) was the first to come up with the idea. He advocated separating the legislative and executive branches. In “Two Treatises of Government,” Locke argued that the people who got power to secure public interests should exercise power according to the rule of law.
It was French Philosopher Baron de Montesquieu who developed the idea. He expanded Loke’s two-part government into a tripartite system. In “The Spirit of the Laws” and other writings, Montesquieu wrote that there would not be a complete freedom without the judiciary’s independence from the legislative and the executive branches. An aristocrat from Bordeaux, he served as a judge and studied legal philosophy, theoretically completing the tripartite system. His social background helped lead the independence of the judiciary.
The system was first realized by the U.S. Constitution in 1787. James Madison, one of the Founding Fathers, thought that constitutional interpretation should be entrusted to independent judges free from political discord. In this sense, the history of the separation of powers goes back only about 200 years. Korea’s history of the tripartite system is even shorter, as it was first implemented in the ninth constitutional revision in 1987.
Supreme Court Chief Justice Kim Myeong-su’s conducts and remarks are controversial. Essentially, Kim undermined the separation of powers and the Supreme Court lost the timing for overseeing judges. If the judiciary had handled a controversial judge on its own before the National Assembly impeached him, the outcome would be very different.
However, it was Kim who exonerated the judge with a light disciplinary reprimand. The power that cannot not stand on its own cannot check or watch other powers. The philosophical background of the tripartite system is not merely about separation, but independence.
Regardless of the circumstances, Chief Justice Kim’s position has become political. As the only non-elected branch of the three powers, the power of the judiciary comes from the trust of the people. But it is lost once a judge is involved in politics as in the case of the chief justice who paid heed to the legislature before accepting a senior judge’s resignation. That’s why the Constitution guarantees the independence of a judge.
Debates continue over Kim’s damage of the separation of powers. In terms of the theory of separation, the answer is already out. How long can Kim last if he cannot stand alone? No matter how great a system may be, it is the people who maintain and complete it. Korea’s tripartite system is still incomplete.