[Column] A critique of the politicization of the judiciary and the judiciary's sway over politics

Judges should not be able to infringe on the authority of politically elected leaders

By Park Ji-ung,

By Park Ji-ung, attorney

Marbury v. Madison was an early 19th century decision by the US Supreme Court that had a lasting impact on US constitutional history. It’s a decision that’s familiar to anyone who has studied the American constitution even on a cursory level.

Soon after the founding of the US, an individual named William Marbury who had been nominated to a federal judgeship was refused his commission by the newly inaugurated President Thomas Jefferson. This prompted Marbury to sue incoming Secretary of State James Madison, asking the courts to force Madison to deliver his commission.

In 1803, Chief Justice John Marshall delivered a remarkable ruling. While he found that Madison’s failure to deliver Marbury’s judicial commission had been in violation of the law, he simultaneously found that, under the constitution, the Supreme Court didn’t have the authority to compel the government to deliver that commission.

The dispute over the appointment of public officials by presidents is something that has occurred with some frequency in South Korea as of late.

Ironically enough, judicial restraint appears to have been behind the ruling that established the right to constitutional review. That was the very ruling that elevated the authority of the judicial branch of government, which had been much weaker than the legislative and executive branches.

The Supreme Court had found that political forces should resolve the disputes that arise between them and should refrain from asking the courts to decide who is in the right.

When political forces depend on the judiciary to make their decisions or to judge right and wrong, they are demonstrating their impotence, handing over their power to judges to whom the people have not delegated the power to rule. And that’s extremely dangerous.

In recent years, constitutional matters in South Korea have turned into a soap opera. Most previous presidents have either been impeached or been put on trial.

In every election, candidates from all parties have been leashed by the prosecutors, while lawmakers in the National Assembly have turned to the courts and the prosecutors, through lawsuits and legal complaints, to resolve inter-party clashes that ought to be resolved through the National Assembly Act and through precedent.

The National Assembly Advancement Act proved inadequate to conflicts over bills aimed at reforming the prosecutors and the electoral system. Lawmakers from both parties, their staff, and party officials have all been hauled before the courts.

Prosecutors consistently taking aim at presidents

Meanwhile, the prosecutors have taken aim at the president by launching an investigation into the government’s nuclear phase-out policy, which can be seen as a high-level political decision. The same goes for other political matters. The tradition of excluding high-level political decisions from judicial review appears to have completely disappeared.

In an attempt to bring the prosecutor general to heel, the government made an even greater error, mobilizing the disciplinary system to place the prosecutor general under judicial review. This created major political liabilities for both the minister of justice and the president himself. And along the way, the political process was lost.

The radical direction that politics has taken gives ammunition to the argument that there should be a complete ban on people moving between the political and judicial domains.

In February 2020, the opposition party overcame resistance from the ruling party and reached an agreement to ban people who have participated in politics from working in the judicial branch (including the courts and the prosecution service) for three years. And in the current session of the National Assembly, some members of the opposition party have submitted a bill that would ban people who have served in the judicial branch from participating in politics for one year after resigning.

Both of these measures are merely populism at work. Fine judges and fine politicians both have the same requirement: namely, neutrality about values. Neutrality here simply means withholding judgement about values.

When the judiciary is politicized, politics comes under the sway of the judiciary. In order to rectify this situation, politicians must take it upon themselves to recover their fundamental values. Politics means resolving conflict and helping the nation reach a consensus.

Reestablishing institutional principles of National Assembly

Why don’t we lift many of the behavioral restrictions and prohibitions in the public official electoral system, since they’re one of the major elements of conflict, and reestablish the institutional principles of a functional National Assembly?

More fundamentally, why don’t we have elected officials surrender much of their authority together? What about agreeing to revise the constitution so as to place restrictions on Korea’s imperial presidency and devolve some of those powers? Under that framework, wouldn’t it be possible to talk about the courts refraining from interfering with political authority?

We seem to have entered an era in which politics has drifted so far from its mission and become such a travesty that the judiciary has the power at any time to threaten the political leaders elected by the people. The politicization of the judiciary is a reaction to the judiciary’s sway over politics. It’s time for politicians to start thinking once more about a spirit of consensus and self-reform.

Please direct comments or questions to [english@hani.co.kr]