SOUTH KOREA: Independence of judiciary is in question

The judiciary in South Korea had made some humiliating decisions under political influence during military dictatorships in the past. Some judges who collaborated with the then-government by judging in its favour, got speedy promotions as a form of compensation. Others who fulfilled their commitment as judges underwent either physical threats or the threat of demotion. The case of ‘Inhyukdang’ or ‘judicial killing’ – in which people have been found guilt after their executions – is indicative of how normal individuals can be, and were victimised by the judiciary. Even though the government has changed, threats to the independence of the judiciary have not been eradicated. Indeed they have become more sophisticated, and take further from the public eye. 

While the three-month candle light vigil was taking place in May 2008, several organisers of the demonstration including Mr. Ahn Jin-geol, were targeted by the police. Finally those main organisers and several participants were arrested and detained under the Act on Assembly and Demonstration and Road Traffic Act. Meanwhile, Mr. Ahn Jin-geol submitted an application of constitutional review on article 10 of the Act on Assembly and Demonstration, which prohibits holding assembly after sunset. The judge, Mr. Park Jae-young accepted it and asked for the Constitutional Court to review the relevant article. Unfortunately he resigned in the middle of January 2009, noting that as a public servant, it has become difficult to go with the current government. 

The information recently obtained reveals that the cases relating to the candle light vigil were allocated to a particular bench court, where the judge is known to have made several conservative judgements. He was given five cases, not by the computer system (the general way of case allotment) but by the instruction of the then-chief judge of criminal trial, Mr. Heo Man of Seoul Central District Court. It was challenged by thirteen out of sixteen criminal judges and later changed back to the norm. 

According to the established rule of the Supreme Court, each court is bestowed with a case according to the order of case allotment. However if the case is important so that the result of the judgement of the case might have social impact, the general way can be replaced with a special kind of case allotment, where the person in charge of can appoint a particular court to deal with the case. This is basically a throw back to the old days, when the judiciary allocated sensitive cases to a particular judge of court who judged cases in favour of the government in the past military dictatorship. The case allotment system by computer was created in order to prevent any influence by senior judge or politicians. 

The listing of cases for hearing should be on an objective basis, and no one should have any personal choice in the fixing of cases. This goes to the very principle of impartiality. Judges hear cases which come before them and they do not choose cases which they want to hear, or refuse cases which they do not want to hear. Any change that suggests arbitrary case fixing interferes with the integrity of the process and also public confidence in the judicial process. If South Korea has developed a computerized form, which goes on the basis of programmes set on accepted criterion, this is an advance in proper case arrangements for hearings. If there is any attempt to change this process in favour of any particular judge, of whatever seniority, to decide on this matter, it is a serious step backwards. 

Once a credible system is established it is a regressive step to go back into a less reliable system. The ultimate consequence of personal influence actually playing a role, or appearing to play a role in fixing cases, seriously undermines the independence of the judiciary. Impartiality and the perception of impartiality are important components of the independence of the judiciary. 

In addition, Mr. Heo, the then-chief judge allegedly asked the criminal judges handling the candle light protest related cases to increase sentences, such to replace fines with detainment in police custody. He also asked them to write the reason, when other judges refused to issue arrest warrants as ‘lack of vindication’, which allows the prosecutors to reinvestigate and re-ask for arrest warrants, but not to write ‘there is no worry of destruction of evidence or flee’, where there is little room for the prosecutor to get arrest warrants. 

Sentencing must be based on valid criterion and not on any personal preferences. Particularly any form of appearance that the political factors play a role in sentencing will seriously undermine the system as a whole. In any credible system there are uniform rules to be applied in sentencing. All good systems also give discretion to the judge in deciding on sentences. However, the use of discretion is always based on accepted principles of jurisprudence. If there is wide variation in sentencing, it means that there is no agreement on the principles of sentencing. Such lack of agreements will lead to arbitrariness and that is contrary to the proper use of discretion. Blatantly arbitrary use of sentencing amounts to arbitrary use of power. 

The judiciary must provide a clear and adequate explanation to the public regarding the issues raised and take necessary action in order that similar incident will not occur in the future and the judiciary itself restores people’s confidence.

Document Type : Statement
Document ID : AHRC-STM-041-2009
Countries : South Korea,