The Supreme Court Chief Justice is now subject to a national investigation. The Democratic Party decided on October 27 to conduct a national investigation into Chief Justice Cho Hee-dae. The inquiry aims to clarify issues such as the rejection of Supreme Court justice candidates, problems with witness oaths during national audits, allegations regarding operational expenses and bonuses, and suspicions of political interference and abuse of power. This move to investigate the Supreme Court Chief Justice is unprecedented.
The National Assembly has the authority to conduct national investigations, as specified in Article 61 of the Constitution. Judicial administration should not be exempt from scrutiny. If the Chief Justice has engaged in illegal or improper conduct, it must be addressed.
However, the Constitution contains another provision. “Judges shall rule independently according to their conscience based on the Constitution and laws.” This is stated in Article 103. Article 105 guarantees judges' terms, while Article 106 stipulates that judges cannot be dismissed without impeachment or a sentence of imprisonment or greater. Judges cannot face adverse actions such as suspension or demotion without disciplinary measures. This protects the independence and status of judges to ensure they do not lose their positions due to their rulings or feel pressured by political entities. Judicial independence is not merely a privilege for judges; it is a mechanism for citizens to receive fair trials against the executive and legislative branches.
Thus, the context of this national investigation cannot be overlooked.
The conflict between the Democratic Party and Chief Justice Cho dates back to May 1 of last year. At that time, the Supreme Court's full bench overturned a lower court's not guilty ruling in a case involving Lee Jae-myung, the Democratic Party's presidential candidate, and sent it back for retrial with a guilty intent. Three days later, the Democratic Party held an emergency meeting to consider impeaching Chief Justice Cho.
Since then, significant changes have occurred in the judicial system. Legislation proposed by the Democratic Party, including laws on judicial distortion, the right to appeal to the court, and an increase in the number of Supreme Court justices, has passed through the National Assembly this year. Starting in 2028, the number of Supreme Court justices will increase from 14 to 26 over three years. During his term, President Yoon Suk Yeol will appoint 22 of the 26 justices.
In this context, Chief Justice Cho has clashed directly with the Blue House over the nomination of Supreme Court justices. When the Blue House effectively rejected the nomination of candidate Son Bong-ki and requested a re-nomination, Chief Justice Cho refused, stating, “There are no specific reasons or constitutional grounds.” The Blue House countered that the Chief Justice was undermining the president's appointment authority.
Underlying these events is the notion that 'elected power' is superior to 'unelected power.' In a press conference last year, President Yoon stated, “In the Republic of Korea, there is a clear hierarchy of power,” mentioning the directly elected legislative and executive branches as superior to the judiciary.
However, the constitutional separation of powers does not establish a hierarchy of state institutions based on whether they are elected. Article 1 of the Constitution declares the Republic of Korea a 'democratic republic.' All power originates from the people (democracy), but the power entrusted to the people is divided into legislative, executive, and judicial branches (republicanism). Popular sovereignty and the separation of powers are not contradictory principles; they must operate together.
The warning of 'tyranny of the majority' by French political scientist Alexis de Tocqueville is also significant. Just because a majority is achieved in an election does not automatically legitimize every decision. The Constitution draws a line to prevent the majority's power from overwhelming fundamental rights and independent state institutions.
The president is not above the Constitution. The National Assembly is not above the courts. If a majority seeks to align judicial rulings and appointments with political interests, it is no different from 'legislative dictatorship.' The legitimacy of elected power also derives from the Constitution. The power entrusted by the people through elections is not to be exercised 'beyond the Constitution' but 'within the Constitution.'
* This article has been translated by AI.
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