South Korea’s Judicial Reforms Spark Concerns Over Power Balance

A law professor from Korea University has raised serious concerns regarding proposed judicial reforms in South Korea, warning that they may undermine judicial independence and threaten the separation of powers. On December 17, 2023, Cha Jin-ah, a specialist in constitutional law, expressed her apprehensions about a package of reform bills backed by the ruling party, stating, “unchecked power leads to dictatorship.”

Cha, who previously served as a constitutional researcher at the Constitutional Court and worked with the National Assembly on constitutional revisions, supports certain reform ideas, such as a limited increase in the number of Supreme Court justices and a new court petition system. However, she raised alarms about the details of these proposals and the push to process them simultaneously, suggesting potential political motivations behind the reforms.

The proposed changes include expanding the number of Supreme Court justices, creating an appellate court, establishing a special court for treason, and introducing a crime of “distorting the law.” Additionally, the plans call for abolishing the court administration office and creating a judicial administration committee.

Concerns Over Judicial Independence

In an interview conducted on Tuesday, Cha discussed the ruling party’s assertion that expanding the Supreme Court and introducing a court petition system are necessary reforms. She acknowledged the need for some adjustments, stating, “Increasing the number of Supreme Court justices to some extent is necessary. Adding about one division—meaning four justices—is appropriate.” However, she cautioned that a proposed increase of twelve justices would be excessive and could lead to blatant political appointments.

Cha criticized the proposed court petition system as “too naive,” questioning how the Constitutional Court would manage reviews of all final judgments alleged to violate due process or fundamental rights. “Can the Constitutional Court handle that?” she asked, emphasizing the need for vigilance regarding judicial independence.

Potential Risks of New Legal Provisions

Addressing the ruling party’s intention to revise potentially unconstitutional elements within the proposals, Cha expressed skepticism about the motivations behind the simultaneous introduction of a special court for treason and a crime of distorting the law. She suggested that these measures may be aimed at manipulating treason or insurrection trials to politically disadvantage opposing factions.

“A special court for treason itself is unconstitutional. Fair trials become meaningless, and the result is a predetermined tribunal,” she stated. Cha further condemned the proposed crime of distorting the law as “barbaric,” comparing it to a clause in German law that punishes judges and prosecutors from the Nazi regime. She warned that if adopted in South Korea, it could lead to misuse and create an environment conducive to political pressure on judicial officials.

Cha also voiced concerns over the plans to abolish the court administration office and create a judicial administration committee, asserting that stripping judicial administrative authority from the courts is unconstitutional. “Judicial power includes not only adjudication but also judicial administration such as case assignment and division of duties,” she noted.

The prospect of the ruling party holding a majority in the National Assembly raises questions about the fate of these bills. Cha emphasized that public opinion is the key to stopping any legislative overreach. “Winning an election does not mean everything the ruling party does equals the people’s will. Democracy does not operate only on election day,” she remarked.

Cha concluded by underscoring the responsibility of the opposition to actively challenge attempts to undermine judicial independence and provide constructive alternatives. “The opposition’s failure to check power is also significant. It must wake up,” she stated.

As South Korea navigates these proposed reforms, the balance of power and the integrity of its judiciary remain at the forefront of national discourse.