Media  Foreign Affairs and National Security  2019.10.08

Keep South Korean judiciary independent

the japan times on October 1, 2019

Some TV stations in Tokyo asked me last week to comment live on the moribund Japan-South Korea relationship. I asked them if there were any other topics and whether they were still obsessed with South Korea. The producers of the programs replied that no other topic can get higher ratings these days.

They're probably right. Almost everybody in Japan seems not only know the full name of South Korea's new justice minister, Cho Kuk, and many Japanese seem to know about his wife and children as well as the potential criminal charges they face in an investigation by the Public Prosecutors' Office in Seoul.

Maybe the Japanese and the South Koreans are the only two nations who know so much about the justice minister. The Cho scandal, however, is much more than a simple domestic power struggle between the progressives and the conservatives in South Korea.

Many people in Tokyo, and at least some in Seoul, may wonder if the Cho investigations could trigger a political chain reaction that would not only weaken the administration of President Moon Jae-in but also expedite his lame duck period. This seems to be the conventional wisdom in Tokyo.

A more important aspect of the Cho case, however, is not about the longevity of the Moon administration but rather the health of democracy in South Korea and in particular the level of its judicial independence. As a democracy with separation of powers, it should have an independent judiciary.

Judicial independence is essential for protecting people's rights and freedoms. In any healthy democratic system, judges and public prosecutors are not be subject to political pressure from the other two branches or from private or partisan interests. An independent judiciary, however, is easy to talk about but rather difficult to implement.

The best example is the United States. The Washington Post's report that U.S. President Donald Trump "repeatedly urged the Ukrainian president to investigate Joe Biden" eclipsed the two important summits that Trump held with his Japanese and South Korean counterparts in New York late last month, .

A nine-page document revealed the whistleblower's "urgent concern" that the president was "using the power of his office to solicit interference from a foreign country in the 2020 U.S. election." It's no wonder that this bombshell claim led to an impeachment inquiry into the president by the House of Representatives.

No president of the U.S. is above the law, including Trump. Under the U.S. system, whistleblowers are expected to question any wrongdoings inside the government, even by the president himself. If a suspicion is real, the judiciary will automatically go after it. This is American democracy.

Trump, however, doesn't seem to understand what he is doing. Although it is really a tragedy for many Americans, Trump is not interested in governing anyway. He is still a businessman and has no idea of the importance of an independent judiciary. If he knew, he would not have made that phone call to Ukrainian President Volodymyr Zelensky.

Moon, however, should be much more responsible than Trump given that he is a professional jurist who studied and practiced law. As such, he knows the true meaning of an independent judiciary. He may claim that the Public Prosecutors' Office is corrupt but that does not justify his undermining the independence of judiciary.

When the Russiagate scandal erupted in Washington in 2017, then-Attorney General Jeff Sessions, a potential stakeholder in the case, wisely recused himself from the investigation by special counsel Robert Mueller. Trump was naturally furious but Sessions just did what a jurist is supposed to.

Cho is also a jurist and was a professor of law at Seoul University. He must have studied how a justice minister should conduct himself. As such, he should have immediately recused himself from any investigations involving his family.

Some of my South Korean friends in Seoul have asserted that the country's public prosecutors are corrupt and have never been politically neutral. But others say the prosecutors have been opportunistic and willing to punish an outgoing president to woo an incoming one. I am not so sure about that.

One thing I know, however, is that no matter how corrupt, biased and therefore politicized the public prosecutors might have been under the Cold War military regimes, at least some in the new generation of South Korean prosecutors hopefully understand the importance of an independent judiciary, including the public prosecutors' office.

No matter how eloquently the president, the justice minister or the rest of the Moon administration's members may justify the reform of South Korea's prosecution system, what they are doing appears to be another attempt to politicize the judiciary branch -- which must be independent from political pressures to protect South Korea's democracy.

Contrary to the conventional wisdom of some people in Tokyo and many people in Seoul, I value the existence of a free, democratic, independent, prosperous, stable, strong, united nation that is free of nuclear weapons on the Korean Peninsula. I especially wish to see an independent judiciary in South Korea, which is a proof of functional democracy.

The real problem is not whether the Cho scandal leads to the fall of the Moon administration: What is truly at stake now is the future of democracy in South Korea. It's time for Seoul to stop politicizing the judiciary. If Moon doesn't, South Koreans might lose the stable and sustainable democracy that he has long dreamed of.