OPINION

[Editorial] Concerns on special court

By Korea Herald

Bill to form bench to try specific case may violate separation of powers

  • Published : Oct 28, 2018 - 17:15
  • Updated : Oct 28, 2018 - 17:15

The ruling and three minor opposition parties agreed to rush through a bill to create a special court to deal with suspicions of “judicial power abuse and trial manipulation” involving the former Supreme Court Chief Justice Yang Sung-tae.

They say the bill is intended to guarantee a fair trial, because many of the suspects are presiding judges of the Seoul Central District Court, which will take on the case if the prosecution indicts.

According to the related bill proposed by Rep. Park Ju-min of the ruling Democratic Party of Korea, a nine-member panel -- three from the Korean Bar Association, three from a council of judges representing high and district courts, and three from non-legal professions -- will recommend special court judges. The judges will rule on requests for arrest warrants and preside over the first and second trials. They will be placed under the jurisdiction of the Seoul Central District Court.

Justifications for the special court sound plausible, but whether they are consistent with constitutional principles needs to be considered. There are concerns that a special court to try a specific case may violate the separation of powers and judicial independence.

Even if the special court is composed entirely of incumbent judges, it is a clear violation of the separation-of-powers principle in that the National Assembly is intervening in the formation of a judicial bench.

The current judicial system rules out a judge with special ties to the assigned case and reassigns it to another without such ties. A judge can also avoid a case or request it be reassigned.

It is questionable if the suspicions in this case are serious enough to ignore all of the existing procedures and form a new separate court.

Soon after being named by President Moon Jae-in as Supreme Court chief justice, Kim Myong-su ordered internal reinvestigations into the suspicions.

They found some inappropriate steps were taken by officials of the National Court Administration under Yang, but nothing was discovered about suspected manipulation of court decisions on cases of interest to Cheong Wa Dae under President Park Geun-hye.

This was a conclusion reached by incumbent judges.

Nonetheless, Kim let the prosecution investigate the issue. Now the ruling camp seeks to form a special court.

Setting up a special court is as good as expressing distrust in the judicial branch and giving a death sentence to its independence.

Special courts were formed exceptionally when the society was in chaos -- to punish those who committed crimes against the people in collaboration with Japanese colonial rulers during their occupation of Korea, in 1948, three years after the nation gained independence, and punish those involved in rigging the 1960 presidential elections, which caused fatal demonstrations.

It is hard to regard the current situation as the same as those days.

After the court Saturday approved prosecutors’ request for the arrest of Lim Jong-hun, former deputy head of the court administration, the Party for Democracy and Peace which agreed on the special court, said, “the arrest came late, but the right will prevail in the end. Former Chief Justice Yang is the next.”

If those who argue certain persons are guilty intervene in selecting judges, the trial is not a trial any more: It is a formality.

A senior judge wrote on an internal communication network: “If a judge is chosen or replaced with another whimsically as in an absolutist state, fairness and impartiality of trial cannot be guaranteed.”

If a special court is allowed, similar demands will likely become frequent under the pretext of ensuring a fair trial. There are concerns that the precedent may be abused politically for partisan interests.

The ultimate problem with the special court issue lies in the judicial branch. Special court or not, it must try hard to recover trust in its fairness and independence. Chief Justice Kim and all judges under him should reflect on how things have come to this.