The internal malpractice in the judiciary invites miscarriage of justice

The judiciary is that branch of the state which adjudicates on conflicts between state institutions, between the state and the individual and between individuals. The judiciary is independent of both legislature and the executive. This is a feature of judicial independence which is of prime importance, both in relation to the government according to law and in the protection of the liberty of the citizens against the executive. First of all, the judiciary should be impartial and competent in order to fulfil its role and function.

From the observations of the last couple of years there has been little indication that action taken by state institutions is hampering the independence of the judiciary. However, a common problem which continues to arise is the situation where senior judicial officials have limited the independence of junior judges by taking disciplinary action against them while they themselves go free or receive very lenient action, even in cases of corruption in which they are involved.

For instance, recently, one judge failed to be reappointed in February 2012 after he uploaded a parody mocking the President, the head of the executive on the Social Network Service (SNS). The superficial reason given by the Supreme Court Disciplinary Board was that his merit rate was low. It was, in fact, over the average. In the same month, another judge who also uploaded a similar parody on the SNS was suspended for 6 months by the Board after action was considered together with his general conduct.

Interestingly, it appears to be a standard that the expression of judge's political views in the SNS is entitled to receive heavier disciplinary action than the misconduct of corruptions of senior judges. For example, when there was nationwide candle light vigil protest for some period in 2009, many peaceful demonstrators were arrested, prosecuted and convicted accordingly for violations of various existing laws. In the court proceedings, some senior judges interfered with the junior judges dealing with such cases (for details: AHRC-STM-041-2009). One senior judge was later promoted and has since become a Justice to the Supreme Court, despite much misconduct and heavy criticism.

In October 2011, one senior judge involved in numerous corruption cases received 5 month's suspension. Again, in January 2012, one senior judge who was offered dinner a number of times and expensive bottles of wine was suspended for 2 months by the Board. Another case which has recently come to light is that in the period of the by-election of the Seoul Mayor, in October last year, a judge allegedly interfered with a prosecutor's handling of a case where a netizen was charged with criminal defamation of the judge's wife who was running for the election. The netizen was finally convicted with fines that were reportedly high.

The cases above, on the one hand, demonstrate that the judiciary attempts not to create any tension with the executive but on the other hand, the standard of disciplinary action is flexible in favour of senior judges and seems ambiguous. The position of a senior judge has the power to give merit rating to junior judges and therefore, it is of the utmost importance to secure their independence. It also causes a breakdown in the delivery of justice. If the position is misused either for political reason or personal benefit, the level of miscarriage or distortion of justice is apparently higher than in the ordinary situation. A recent opinion poll saying that almost 77 percent of population distrust the judiciary is an indicator of current problem.

Some of the questions which have arisen need more public discourse which may require judicial reform in the long run. They are as follows.

Within the judiciary, what is the criterion of interference over a junior judge by a senior judge? What makes it different from the unlawful interference of giving advice or a direction to a junior judge by a senior judge? If refusing to take such advice or direction, does it affect the promotion or reappointment of a judge? If so, what is the scope? Is this practice in breach of the independence of a judge according to law?

As far as the political neutrality, does it limit personal criticism against the executive through personal means of communication? If so, then to what extent? What if such criticism is for the protection of human rights and rule of law? Is the judiciary in itself apolitical or political? Is the judicial silence to the executive politically neutral? Is the political neutrality of the judiciary suitable for democratic society?

With regards to the relationship with the prosecutor's office, how does the system allow that a senior judge may influence or interfere in the prosecutor's handling of a case in which the judge has a personal interest? Here, the real aspect needs to be broadly discussed. Among most of legal professionals, its relationship is largely developed during the Judicial Research and Training Institute (JRTI) under the Supreme Court. The year they graduated from the institute is another factor in identifying who the superior is. Is there any mechanism to monitor such malpractice and review how such hierarchical relationships affect the independence of the judiciary?

There is a genuine belief among people that those who graduated earlier from the institute are in a better position to use personal relationships to gain benefit either for clients or for his or herself. In fact, such relationship among legal professions is employed by the legal community. A bribery or corruption is normally made through this personal channel. Senior judges are often targeted under the name of good 'treatment' or 'taking care in case' by lobbying groups. However, due to the narrow definition and interpretation of corruption, it normally ends up with personal misconduct. No judicial review has been made and no one knows how many cases of the miscarriage of justice have been delivered. As narrated above, these serious issues are not properly taken up for public discourse for a change or better reform. What is the scope of misconduct? What is the criterion of a high standard of integrity? Does corruption or bribery come under the criteria of high standard?

Endowing judicial independence in the statutes is to adjudicate independently from any state institution according to law and protect the liberty of the citizens against the executive, not securing his or her position or for promotion at the judiciary. There were attempts in the past to change such malpractice inside the system but the result was always either voluntary or involuntary resignation of those who took the risk therein. As a result, such malpractice has been tolerated unless it became known to the public. Sadly, such disclosure is perceived not good thing to do for discussion but bad thing as it creates a bad image for the judiciary. It appears that it is a challenge to address the malpractice because it should begin with evaluation as to the appointment of the Justice to the Supreme Court in 2009.

Serious public discourse should be made in order to address the problems that have been exposed and a proper mechanism needs to be established. A close study and evaluation of current malpractice is prerequisite for the judiciary to understand in depth and find ways to solve it. There is also need for judicial review on cases where individuals are victimised by such malpractice as well as corruption wherever necessary. Without these efforts to fight against or eliminate internal malpractice, the independence exists only on paper and it only delivers miscarriage of justice independently.

About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

http://www.humanrights.asia/news/ahrc-news/AHRC-STM-058-2012