Han Sang Hie, Former Director, Judiciary Watch; Professor, Law School, Konkuk University, South Korea
Electoral democracy and the emergence of Judiciary Watch
The Korean people have successfully achieved industrialization and democratization at the same time, which was unprecedented in the new and emerging countries that were liberated from colonial rule after the World War Two. As Samuel Huntington pointed out, Kenya and South Korea were among the poorest nations in the whole world in the 1960s, but these days, the latter has become a developed country with the 13th largest economy in the world whereas the former has remained as it was.
South Korea’s transformation from authoritarian regime to electoral democracy in 1987 deserves more attention from the developing countries in Asia. The division of the Korean Peninsula into two regimes based on conflicting political ideology provided lots of rationales for the authoritarian rule in the south of right-wing dictators such as Dr. SM Rhee, General Park, and General DH Chun. The student uprising in 1960 could expel the despotic President Rhee and establish a more democratic regime; however, a military coup led by General Park the following year put an end to it. One military regime after another then ruled the southern part of the Korean Peninsula for more than 27 years.
After the assassination in 1979 of President Park, General Chun sent Special Forces to the city of Kwangju and violently crushed the Democratization Movement in 1980. Then in June 1987 the situation totally changed. Waves of pro-democracy demonstrations took place one after another against Chun’s regime. Under the leadership of the “National Movement Headquarters for the Attaining of a Democratic Movement” the Korean people were united to demand democracy, regardless of class, occupation, region and religion. What became known as the June Democratic Struggle culminated in the Constitution of 1987, which has been valid till now, and with it electoral democracy.
Even though the first presidential election under the new constitution resulted in making TW Roh–a retired general and an accomplice in the 1980 coup–the 13th President of Korea, people could for the first time vote and chose according to their free will. When a former advocate of democracy, DJ Kim, was elected 14th President in 1997, the Korean people could say that they had achieved a kind of electoral democracy, reinforced by the fact that a former human rights attorney, MH Roh, succeeded Kim in 2002.
But it was just the beginning. The Korean people had to face lots of problems in the way towards true democracy. Consolidation of democracy in Korean society has required protection of human rights, due and fair process of law, transitional justice and reconciliation, deregulation and rearrangement of the over-centralized state power, local self-government, as well as rule of law. To be a more democratized society, any arbitrary powers exercised by the state should be replaced with laws, which are democratically enacted, fairly executed, and independently adjusted. It is the reason why the transition from authoritarian “rule by law” to more democratic rule of law cannot be carried out without the independence of the judiciary and judges.
The new constitution has several clauses that guarantee the independence of the judiciary: fundamental right to fair trial by ordinary judges whose legal status and independence should be protected by statute, substantial independence of appointment procedure of justices and judges, exclusion of pending cases from the objects of legislative investigation, and establishment of the Constitutional Court with the power of judicial review, all which introduces a kind of judicial supremacy over other powers in Korea.
People’s demand for Judiciary Watch comes from this transformed legal system. State power was overdeveloped since the time of Japanese rule and under authoritarianism. But replacing such a power with law is one thing and doing so with the power of the judiciary is another. Because the Korean legal system is based on a bureaucratic model adapted from Germany via Japan, the rule of law may mean the rule of the bureaucratic judges and/or the prosecutors. What the Korean people really want is democracy not juristocracy: this is the ultimate end of the activities of the Judiciary Watch Centre: the rule of democratic law.
The next section consists of a brief history of the Korean legal system, especially the judicial system, in order to explain the background of the JWC, which will be followed by the history and purpose of the JWC as well as a brief description of its main strategies. The following section will describe important activities of the JWC.
Rule of law and consolidation of democracy
The era of rule by law
Since the Japanese colonial rule of Korea, the Korean legal system has adopted the Romano-German legal system, where bureaucratized lawyers operate the legal system. But what was different in Korea from Germany and Japan was the status under this system of the lawyers. They did not have any independence from political power or even from police power. Under Japanese rule, the lawyers, whether they were judges, prosecutors, or attorneys, could not be more than auxiliary agents of the Japanese law bureaucrats as well as Japanese police power.
After liberation from colonial occupation the situation was not changed. Authoritarian regimes relied more on the direct use of various police powers to control and mobilize the Korean people. The first regime led by President Rhee preferred regular police power and, sometimes, political hoodlums. The military regime of President Park established the Korean Central Intelligence Agency (KCIA) along with the existing police power to suppress any opposition, in addition to which the Defense Security Command (DSC) played same role in the fifth regime of the President Chun.
Through all the time of authoritarian rule, the law was just a convenient expedient for such coercive powers to be exercised, which might be described as “rule by law”. Law and legal rules were thoroughly subordinated to the police powers of those coercive organs. Judges and prosecutors were a kind of vending machine, which vended any legal decisions or measures that were ordered by those organs. The anti-communist framework that has defined the Korean political system since 1948 limited the judiciary as well as the prosecutor’s office to ancillary positions under the ruling powers. Politically salient cases relating to national security, labour movements, student movements, assemblies and parades to protest as well as some assemblies with political orientation, were treated as guilty parties by those organs, and the prosecutor’s offices and the courts could do nothing more than handle the cases under the guise of law and justice.
At the same time, however, the lawyers were power-holders, who ‘reigned’ over the people with their power of executing law. The prosecutors’ power especially was stronger than the judges’. They had substantial power to detain suspects, absolute power to investigate any cases, and absolute power to indict suspects or to release detainees, against which the court hardly intervened. That was why they were referred to with an honorific “Your Excellency”; they were a kind of “noblesse de robe”.
The attorneys-at-law were not different from those law bureaucrats. Actually, they shared the power with judges and prosecutors, because they were senior lawyers who had taught and led the judges and prosecutors into their current posts. They were alumni who had all passed the most difficult bar exam in the world (only three per cent of applicants could pass it) and graduated from the Judicial Research and Training Institute. In other words, they were all a family and “the devil knows each other”. The phenomena of “revolving doors” was everywhere, so that everyone was talking about “not guilty with money, guilty without money”, meaning that one who was so rich to hire a lawyer who retired recently would be decided not guilty or released from detention, and vice versa.
Democratization and rule of law bureaucrats
Electoral democracy could not automatically change the situation into genuine rule of law. Rather, to some extent it drove things in the wrong direction. It is true that the authoritarian exercise of coercive powers had been expelled. The KCIA was transformed to the National Intelligence Service, and the powers of the DSC confined to the military affairs. The investigation powers of the National Police had been substantially controlled by the prosecutor’s office. It seemed that the rule of law had been established. But the power of the lawyers filled up the gaps left by missing authoritarian powers. The power apparatus of the old regime was filled with more moderate organs that are controlled by laws.
The growth of the prosecutor’s power constitutes the most extreme case. Since the Sixth Republic (1987-1992), the prosecutors had no competing power in executing the criminal law, which covers every part of Korean people’s lives from love affairs to political ‘deals’. They could punish (and so, threaten) politicians (especially members of the National Assembly) according to the Public Office Election Act, which forbids almost every kind of monetary transaction unreported to the relevant electoral board. As noted before, they monopolized all the criminal investigation power, with which they could control the judicial police, and they had complete discretion in indictment. They had no rivals in capturing political powers: the prosecutors were the most efficient state apparatus for regimes that have wanted to control and mobilize the political system according to the “law”.
The other parts of the judiciary had not changed either. The courts remained weak and reluctant to reform themselves. They seemed to get some independence from the other branches of the regime, but the traditional internal structure hampered such progress: the power of the chief justice was so strengthened and expanded that none of the courts could refuse instructions from the Supreme Court. The bureaucratic and hierarchal system deepened the problem. Every judge wanted to be promoted to chief judge of the High Court, but the promotion was dependent on the discretion of the chief justice, who had all-mighty power over personal affairs of the judiciary. Under this structure, any president of a court could control the judges who worked for his court, with the power of assessment of the judge’s performance, according to which the judge’s eligibility for promotion would be decided. Actually the junior judge could not be independent from the senior judge, which resulted in a very homogenous and monolithic judge family, closed against the ordinary people.
The bar was still content with the status quo, in which it monopolized the legal services market in the guise of serving the public interest. Even though Korean society was democratized, the legal system was still captured by lawyers, and the people were not the sovereign power in executing the law; they were just the objects of the lawyers’ power. What the democratization of 1987 brought into the civil society was not the rule of law but the rule of the lawyers–a kind of the juristocracy.
This is why the first civil movement for judicial reform in Korean society in 1994 used the catchphrase, “The judiciary shall serve the civil society”. The Korean people wanted the courts and the prosecutor’s office not to be part of the power apparatus but legal services providing organs with more accessibility and familiarity, which could contribute to rule of law and to establishing justice. They wanted to set up a more rational and democratic judiciary, which could reflect the people’s sense of justice and the market’s demand for lessening the cost of transactions. They wanted to hire attorneys-at-law who would charge reasonable amounts. They wanted to instruct their lawyers instead of being ordered by the lawyers they hired. They wanted a true rule of law instead of the rule of lawyers. They wanted to consolidate democracy by reforming the judicial system.
The Judiciary Watch Centre as watchdog
It was at this point that People’s Solidarity for Participatory Democracy (PSPD) was established with more than 200 members as one of the most key players in consolidating democracy in Korea. Its main orientation was to serve as a watchdog against the abuse of state and/or economic powers; to evoke public awareness about those powers through various campaigns; to oversee important state actions, policies and measures, to petition for legislation; and to file public interest litigation. It aimed to dedicate itself to promoting justice and human rights in Korean society through the participation of the people.
The PSPD is comprised of 11 departments. Each department is composed of executive committee members, of whom some are progressive scholars, attorneys, accountants, etc. It has three watchdog centres: the Centre for Judiciary Watch; Centre for National Assembly Watch which watches the activity of the National Assembly and its members, and operates an on-line archive, and aims at participatory democracy through civil participation in national politics; and the Centre for Government Administration Watch, which works on making the society and the government transparent and accountable while stamping out corruption and fraud, and organizes anti-corruption campaigns, plans legislation, researches policies and monitors government officials. It also works tirelessly to uphold the Freedom of Information Act and supports whistle-blowers who provide information on corrupt activities.
The Centre for Judiciary Watch, or Judiciary Watch Centre, was a main part of this newborn NGO. The JWC used one catchphrase to describe its main target: “Judicial reform for the people”. There had been several occasions of judicial reform, all of which, however, served only the judiciary itself or the regime, and were driven by the government, especially, the Ministry of Justice. The JWC wanted to get rid of any authoritarian residue from the judiciary: changing the bureaucratic structure of the judicial system into a more independent and autonomous one. It wanted to reform the judiciary to be more democratic, making the courts more representative and responsive to the will of the people, and more devoted to the people’s interests.
In 1995, the JWC set up 50 tasks for judicial reform, of which the five main tasks were to:
1. Establish monism of the legal profession: Discard the pure-bloodedness of the court and recruit judges from the pool made up of career lawyers and prosecutors;
2. Democratize the judicial system: Open the judicial system to the people and make a more representative and responsive judiciary according to the will of the people;
3. Radically increase in quantity as well as quality the legal profession: Remove the highest entry barrier to the legal profession in the world and increase the supply of legal services;
4. Human rights protecting judiciary: Make the judiciary not part of the power apparatus but the guardian of human rights against the state; and,
5. Orient the judicial system towards the future: Reform the judiciary according to universal standards, and let it function as a facilitator of the country’s competitiveness in the globalizing world.
The JWC took the biggest newspaper–the Chosun Daily–as partner and serially published a “Joint Plan for Judicial Reform” in order to develop such tasks into a social agenda for the consolidating of democracy. The JWC collected and accumulated public opinions on such issues from a wide range of fields and strata, and encouraged the involvement of renowned public figures in round-table talks, which were summarized and published in the newspaper with appropriate materials, statistics, and/or comments.
The project resulted in unexpected success, making the JWC familiar to the public and returning the agenda for judicial reform to the hands of the people. The JWC was not content in presenting a reform agenda, but it provided more specific and concrete material and references to the public. For example, it calculated the number of judges and lawyers per 10,000 residents and compared it with that of other developed nations, based on which it made a more reliable report on the optimum number of judges and lawyers in Korean society in easy language, in order to be easily read by the ordinary people.
Such activities gathered a huge amount of public support, which drove judicial reform. The government and the courts could not resist the demands: they established relevant committees for reformation of each branch, and the JWC’s reports and resources were seriously scrutinized in the policy-making process.
But such success could not satisfy the JWC. It was just a starting point on the long journey toward a truly democratized judicial system. Encouraged by this success, the JWC set up 5 main strategic activities to watch and check the power of the judiciary and democratize the judicial and legal system of Korea: monitoring; agenda setting; participation in judicial reform activities; campaigns and education, and networking for solidarity. These activities will be discussed below. At this point, the organizational and operational strategy deserves a more detailed explanation.
The JWC consists of a board system with two groups of members: the one consists of two attorneys-at-law and one judicial subscriber, and the other one consists of 12 law professors whose specialism is constitutional law and human rights, criminal law and criminal procedures law, criminal law and police law, civil law, and so on. Three full-time staff members are recruited by the PSPD. All of the members have specialty in law and legal affairs, which means that the JWC is a highly professionalized entity for watching the judiciary.
What makes the JWC different from any other law institute is its orientation toward liberal values. In not a few countries, judicial behaviour and legal affairs are usually regarded as an island: they are considered too specialized in legal terms and logics for the people to understand. People are apt to be isolated from the world of law. As the people’s accessibility to law is one of the prerequisites of the rule of law, such discrepancies should be reduced as much as possible. The JWC tries to provide effective human interfaces that connect the lay people’s will to legal system with the specialized world of law and judicial decision-making. The JWC and its members translate law and legal decisions into plain words, which lay people easily access and understand. Moreover, the JWC transforms the people’s demands to the legal system into more legalistic and more legalized form that jurists and lawyers such as judges, prosecutors, and members of the National Assembly can accept as salient resources for their decision (policy)-making.
The specialty of the members of the JWC is another merit for its business. The JWC tries to make its criticism of judicial behaviour resonate with all the members of the law community, and to get agreement to reform the problems from the majority of the members, with which the JWC can drive judicial reform more actively. Uniting the will and demands of the people with jurisprudence and legal doctrines prevailing within the legal community, the JWC’s specialized members can induce co-understanding of lawyers in that community and activate some discussions on the issues with their colleagues, in some cases leading them to make agreements on the necessity of reform. The JWC’s task is, in such occasions, to transmit the messages of the people and provide some relevant materials and resources for lawyers to base their opinions and policy alternatives upon.
“Monitoring is my middle name”
Among the activities of the NGOs with attention on government policies and performance, monitoring is one of the most indispensable and important tasks. Most NGOs monitor and oversee the process of getting people’s demands into the government’s activities, the process of decision/policy-making, the outputs that the government makes, and the outcomes that are made in real world. So does the JWC, but with its own methods: profiling lawyers and constructing database files, and so on.
Database: Who’s who?
The first step to monitoring the judiciary is constructing a database of information on most of the judges and prosecutors as well as major cases (especially investigation and prosecution). The database includes personal information such as date and region of birth, and school and university name he/she attended, careers information such as year of bar exam, year of entry to the Judicial Training and Research Institute, the name of the court or prosecutor’s office where they worked, last place of work and year retired, location of law office, partners in the law office, and information on court decisions, trial briefs, cases investigated or indicted, and miscellaneous information such as newspaper articles about the person, rumours, and reputation. Even though such collection of information is no longer unique and so efficient, because there are several alternative law databases that are provided commercially, the JWC’s database still provides so many useful resources on evaluating and criticizing lawyers.
Along with the database, the JWC has published several “white papers” on prosecutors, and more than 120 comments about the government’s measures on the personal affairs of prosecutors, as well as 132 comments about those of justice and judges since the year 2000. Among them, two papers have attracted special attention: the white papers of 2003 and of 2008-2009. The first one, which reported and criticized the five years of achievements in legal affairs and prosecutions under Kim Dae-Jung’s regime triggered nationwide demands for reformation of the prosecutorial system, while the latter blamed the government of the day for a “retrogression of the rule of law” because of abuse of the prosecutor’s power to repress people’s criticism of the regime.
The JWC is also outing prosecutors responsible for cases that had been criticized widely. “Name & shame” and “Who spoiled the case?” are the most aggressive activities in a shame culture of the sort in South Korea, in which the names hidden behind the cases are revealed. Prosecutors generally try to hide behind legal principles and avoid responsibility for what they do, keeping their names concealed. These days, the JWC is preparing to construct an online database of “The case and that prosecutor”, which will take on this aspect of the system.
Lay people’s review of the judgment
Any judicial decision should not be the exclusive property of lawyers. It should be shared with the people, and it should be accountable to the judgment of the people. When the courts make socially salient decisions, the JWC opens mock trials. It invites lay persons to discuss the rulings that the court rendered. It wants to break out the stereotype that the judicial judgment can be made and assessed only by the legal profession. It wants every person to feel free in reading and judging legal documents and judicial decisions. And, it wants to send the judiciary a message, “I still know what you did last summer”. The last review was criticism of the appellate court’s decisions that reversed the verdict of a jury trial (“citizens’ participatory trial”). The contents and outcomes of the discussions are published in the JWC’s homepages.
Annual Award of the Best Cases and the Worst Cases
As the end of every year is almost upon us, the JWC becomes busy to review the judicial cases of the year, and the grand finale of that works is the holding of the Annual Award of the Best and the Worst Cases. Some of the board members and staff of the JWC gather all the cases that attracted public attention and/or socially controversial discussions and publications on such cases with help of some volunteers, who come from the JTRI, law schools, and universities. They classify the cases into groups of “good cases” and “bad cases”, and circulate the lists of each group to the board members via e-mail, which stirs serious online-discussions among them about which one should be scored how much. At the same time, it gathers the opinions of lawyers, law professors, and journalists outside the centre who are concerned in such activities as well.
Usually ten cases from each group are selected as the year’s good cases and the year’s bad cases, which are called “Stepping stone cases” and “Stumbling block cases” each. Of course, there is the Grand Prix, i.e., the best case and the worst case. These cases are reported on the JWC’s homepages with introducing comments and brief description of the cases and their meaning in the social contexts. Almost every time, they are covered by major mass media.
Warning! “Do you really want to hire a shark?”
If there is an imbalance in information between a buyer and seller, there is a market failure, which will cause unjust additional costs to the inferior party. As far as the legal services market is concerned, this market failure is not exceptional but usual, because the information on the legal profession as well as law itself is rarely opened to the public. Such information asymmetry means that the lawyer is in a superior position to the client.
This is true of the disciplinary measures concerning lawyers. The Korean Bar Association exercises this disciplinary power. But the information on the bar’s disciplinary measures is not easily accessed by lay-people, because it is published only in the bar journals and only in part, without detail description of the case. So, anyone who wants to know about a lawyer whom he or she may retain cannot get any relevant information on whether the lawyer is good or bad.
The JWC wants to ease the burden on people who are searching for a legal representative. It requested the bar to provide more detailed information on disciplinary measures in order to publish the information on its homepage. But the bar denied the request. The JWC had to find another way: it has surveyed all the materials which dealt with such information, such as newspapers, magazines, web-pages, hearsay, and so on, and succeeded in gathering reliable data on this subject. In 2007, it constructed a website (http://www.peoplepower21.org/?sub=lawyer) with the name, “Finding the information on your lawyer’s disciplinary history: Be wise in selecting your lawyer”. Anyone who visits this website and puts a lawyer’s name in the search machine can get information on the lawyer’s record of disciplinary measures since 1993 to the present, that contains the date of the measure, verdict, number of case, name of the lawyer, name of the law firm where the lawyer worked, the date of birth of the lawyer, bar registration number, brief description of the case, and the year when the lawyer graduated from the JTRI.
The Journal of Judiciary Watch
The Journal of Judiciary Watch is one of the most influential journals in the Korean law community. It is an irregular journal, which reports monitoring findings of courts, prosecutors and lawyers, and the JWC’s stance on pending issues. It is distributed to more than 3000 jurists including judges, prosecutors, lawyers, and members of the National Assembly, who are the objects of the Judiciary Watch. This explains why this journal attracts so much attention from the law community: the object of surveillance is usually bound to pay close attention to those conducting surveillance. This is especially the case when the result of the surveillance is published in his/her own community and evokes the sympathy or antipathy of the public and his/her peers based on plausible grounds.
The journal reports reliable data and gives resources from constantly watching cases, and evaluates them according to the constitutional and democratic values and the orientations of the people. Actually, a few lawyers have been dissatisfied with the JWC’s stance, but all they can do is confess that they have a different ideology or principles from the JWC. None could ever make objections against the logical or factual findings that the journal has articulated. In short, the journal is regarded as reliable, creditable and respectable, even among lawyers who do not like the JWC.
The journal conveys lots of voices of the people into the legal community, in legal terminology and methodology. It functions as a conduit through which the people’s demands can go into the legal system. It provides materials and gives the basis of an argument for lawyers to criticize themselves. It enhances the possibility of reformation from inside the legal community. It gives valuable opportunities for the lawyers and the public to unite and cooperate to make a more accountable and responsive system of law.
The JWC could not publish the journal for the last three years because of financial shortfall. The current issue (vol. 30) was published on 30 November 2010, and distributed 2297 judges and 1421 prosecutors as well as to bar associations, law professors, libraries and several administrative organs. It’s main issues were reports on the prosecutors’ abuse of investigation and indictment powers against citizens’ exercise of the right to free expression on the Internet, introduction to the web database of disciplinary information on lawyers, and a report on the revolving doors phenomenon caused by ex-senior judges who opened law offices in front of the court building where they had worked just a few weeks earlier.
Participation for more democratic rule of law
Agenda-setting and participation in judicial policy-making process
Aggregating the people’s demands of the legal system and criticizing judicial behaviour would be of little use without any constructive policy alternatives. Therefore, the JWC has actively come up with practical alternatives for democratic judicial reform.
When the JWC finds some problems, it conducts intensive study on those issues through various surveys as well as through documentary research to find salient alternatives, which, in turn, are circulated through the board and cooperative volunteers specialized in law and in the legal system. Once the validity and efficiency of the alternatives is verified, the JWC usually calls hearings and/or forums, which are open to the public, where it tries to hear various voices and opinions from as many panels as possible. Sometimes, the JWC proposes to the relevant governmental organs to conduct such procedures, in which it actively participates. The final stage is filing petitions to the relevant authorities. Usually the JWC has press interviews to inform the public of petitions before filing them, and occasionally it seeks to band together like-minded lawyers, NGOs, academic associations and so on in order to maximize the possibility of success in making the petition a reality.
The following are some examples of proposals that the JWC has made in the past:
1. Reform the judicial hierarchy: to abolish the promotion system of judges, which has resulted in the subordination of junior judges to senior judges with the power of assessment over the former;
2. Strengthen judicial accessibility: to establish a public defender system and increase the quantity and quality of free representation financed by the national budget;
3. Change the relationship between the public prosecutor’s office and the Ministry of Justice: to make the MoJ completely separate from the public prosecutors, i.e., to make the MoJ a more public oriented organ rather than an organ dominated by law bureaucrats;
4. Reform the prosecution: to petition for the Amendment of Public Prosecutor’s Office Act (1997), to introduce a system of independent counsel for investigation of high-ranked officials and politicians (1999), and to abolish the Principle of Prosecutor’s Unity and Indivisibility (2004);
5. Remove the entry barriers to the legal services market: to reform the system of recruitment and training of lawyers; to increase the number of lawyers, which is the smallest among the OECD countries, and to make the legal services market more accessible to the ordinary people, and;
6. Establish a law school system: to improve legal education and training, which means the transformation of the system of legal bureaucrats to one of a legal profession
These efforts have obtained significant support from the public, and have been the most important subjects for the attention of officials involved in making judicial policy making. As such, the JWC has played a key player’s role in policy-making processes, including the Presidential Advisory Committee for Judicial Reform (1999); Commission on Judicial Reform (2003); and, Presidential Committee on Judicial Reform (2005). From such activities, the JWC has had several big successes, including the Citizens’ Participatory Trial in Criminal Procedure (2003); increase in the number of passers in the bar exam, from 300 to 1000 (1995); Law School System (2003); adversarial system of criminal trial (2003), for reforming of the Criminal Evidence System, which used to favour the prosecutor over the defendant; and, the Special (ad hoc) Prosecutor System (1999 to present), to investigate high-ranking officials, politicians, and on several occasions, some prosecutors who were corrupt or who had abused their power.
Participation in the process of appointing justices
To achieve rule of law in reality, one should not overlook the importance of the question, “Who should be a justice?” The justices are heads of the Supreme Court or the Constitutional Court who have powers to determine the fate of the domestic legal system. They make final decisions on what should be the law, and such decisions can have direct or indirect effects upon the existing structure of the society.
In South Korea, there are two groups of justices: that of the Supreme Court and of the Constitutional Court. The chief justice of the Supreme Court, the president appoints with approval of the National Assembly, and the other justices the president appoints on the nomination of the chief justice. The justices of the Constitutional Court, the president appoints, three from nominations of the National Assembly and the other three from the chief justice. All the justices must be lawyers who have passed the bar exam and graduated the JTRI.
Because the justices have made their careers in the bureaucratized system of the court or prosecutor’s office, they are not regarded, in any sense, as representatives of civil society. The JWC has argued that there should be more diversity in the composition of the courts in order to make them more representative of real society. It argued that the post of justice should not be regarded just the result of the ordinary promotion system of judges and prosecutors, but a seat in a kind of senate which reflects various interests and opinions of the society, and translates them into legal norms.
The JWC has opened two tracks for public participation in the appointment process of justices. The first track is for recommendation. It hosts an open seminar to set up the standards and guidelines to select the candidates for justice-ship. Through several meetings of the board members, it prepares pilot papers on such standards and lets one of its members present the papers in the seminar, the results of which are scrutinized by the all members and reflected in revising the standards. In 2003, candidate selection criteria for justice of the Supreme Court covered personal orientation toward judicial reform; willingness and ability to represent and increase the interests of the underprivileged sectors such as women, labourers and the disabled, as well as interests on issues such as the environment; ability to check the administrative and legislative powers; and, ability to understand and resolve various social problems based on his/her experience.
Once the standards are set up, the JWC begins to collect reliable data on senior lawyers who apparently have some merits to be justices, at which point the database on lawyers it has constructed is of special use. The reputation of candidates among lawyers, their performance as lawyers, their social origins, their relationships with other parts of society, their value orientations–if possible–and any other salient factors are scrutinized as closely as possible. The opinions of lawyers, law professors, journalists and any other parts of relevant groups are widely collected and reflected as well. And the result of all these process is published under the title of, “We recommend these lawyers for new justices”.
The second track is activated when the candidates are officially determined. This is an evaluation process that results in a ‘pro’ or ‘con’ finding. The JWC gathers data and information on the candidates and evaluates them according to the standards established before, whereby a wide range of lawyers, jurists, law professors, NGOs and journalists as well as its members participate. The JWC publishes brief white papers which contain the results of the evaluation processes and the opinions of the JWC that conclude with expressions of “Totally Agree” “Partly (Conditional) Agree”, “Neutral”, “Partly Disagree” and “Totally Disagree” to the candidacy.
The JWC thinks that such activities have produced several meaningful outcomes, including appointment of the first female justices in the Supreme Court (2004) and the Constitutional Court (2003) and substantial abolition of the system of seniority in appointing Supreme Court justices.
Judiciary Watch of the people and by the people
Campaigns and public education
Alienation of the people from the legal world is partly caused by the people’s lack of knowledge about law and the legal system, as well as by the exclusion strategy of the lawyers’ professional group. The JWC has tried to deconstruct such barriers against entry to the legal world. Raising legal issues as social issues that people can more easily access, and providing better opportunities for people to participate in the judicial processes and/or policy making processes on the judiciary: these are central strategies that the JWC has taken on for its activities as the “Judiciary Watch of the people”.
Holding seminars and public hearings is the everyday business of the JWC, through which it communicates with the public: gathering public opinions and providing the public with useful information to think about current legal issues. Open lectures for laypersons and public meetings for discussion on current legal issues serve the same purpose, mostly in collaboration with other sections of the PSPD.
The JWC is campaigning to attract more public attention toward the Citizen’s Participatory Criminal Trial, which is being tried out to test whether the jury system can be good in the Korean legal system. It gathers a small audience to the trial, and holds discussion meetings with the participants after observing the trial. Recently the JWC went a little further: it ‘summoned’ a shadow jury from the public, which attended a trial and made another verdict. Previously, the JWC used to arrange just for attending to the trial and giving some instructions on the proceedings. In that case, the participants are nothing but passive bystanders. But the participants in the shadow jury get a totally different experience by actively participating in the judicial process. They listen to the instructions that the JWC gives to them more attentively, watch the case more closely in the courtroom, and discuss the case more sincerely in the conference room in the court building. They are all recommended to write the report of that experience, and all the reports are published in the Center’s Home Page.
The Open Court
The Open Court is a meeting for citizens’ criticism of a court’s decision. It is a moot trial in which a case is reconstructed from the view of the people not from the perspectives of lawyers, and in which the decision is revised according to common sense of justice and rightness. This serves two objects simultaneously: it enables the public to monitor and criticize judicial decisions, and to encourage the public to participate actively in the judicial decision-making process. There have been 25 cases tried by the Open Court since 13 March 2005, when the first one held.
The Open Court begins with public sensation: When a judicial decision is rendered of social relevance, vigorous discussion begins among JWC board members via e-mail. Sometimes, a member or full-time staff person suggests that the case may be eligible to be scrutinized by the board. Once the board decides to file the case to the Open Court, it chooses who will write review articles on the case from inside and outside of the board. Usually two or three writers are selected and strongly recommended to write their opinions on the case from the perspective of the public, not that of the lawyers.
Take the 19th Open Court (1 November 2007) case. It dealt with the Seoul High Court’s decision that a company’s dismissal of its employee who committed sexual harassment was illegal, and declared it annulled. The High Court accepted the plaintiff’s argument that the actions that allegedly constituted sexual harassment were actually an expression of encouragement and the other office ladies there accepted the same behaviour at that time. What was problematic in the case was the question of who should decide that an action was expression of warm encouragement or sexual harassment: whose feelings should be taken into consideration? A male boss can express his feeling of intimacy in his own way, but this may constitute sexual humiliation for the woman. The High Court took the first view and the defendant and the public took the second one.
We accuse the lawyers in the name of the people
Corruption and other illegal actions of legal bureaucrats are condemned more than the misdeeds of the ordinary person, because officials should be guarding citizens from such misdeeds, not committing them themselves. Nevertheless, the wrong behaviour of legal bureaucrats may not be punished through ordinary legal procedure. Sometimes, colleagues pretend to close their eyes and cover the behaviour up for their counterparts. Such evil customs of mutual concealment are one of the main obstacles to the realization of rule of law in this respect. They weaken people’s confidence in law and the legal system, and go to the age-old problem of “who guards the guards?”
The JWC chose its own method to solve the problem: the Citizen’s Movement of Accusation. On behalf of citizens, the JWC has driven so many campaigns to accuse corrupted prosecutors or judges, and has filed several joint petitions of accusation in the name of the people. In addition, it has proposed some legislation on the Special Prosecutor’s Office Act, according to which a special prosecutor was appointed by the president to conduct intensive investigation of cases in which legal bureaucrats are involved. Some notable accusations in which it has been involved include an accusation that judges were accepting bribes from lawyers practicing in their jurisdiction regularly (Uijeongbu District Court, 1998); that a prosecutor assaulted a criminal suspect during interrogation (1998); that a judge in Kwangjoo District Court was involved in bribery (1998); and, that had received money and lavish entertainment from a local businessman, who insisted that he had sponsored all those prosecutors (2010).
Networking and publications
The JWC has a close relationship with Minbyun – Lawyers for a Democratic Society, which was established in 1988 with 51 human rights lawyers, and which embraces most liberal lawyers now, one of whom was the 16th President, Roh. Minbyun has represented JWC pro bono in most of the public interest litigation (more than 200 cases) that it has filed.
Some political parties like the Democratic Party, the Democratic Labor Party, and the New Jinbo (progressive) Party are ad hoc partners who offer solidarity on a case-by-case basis. These parties’ members have introduced more than a hundred of the JWC’s draft legislative bills to the National Assembly. Sometimes, they collect valuable information and data on the judiciary while doing the work of legislative oversight and inspection of the administration of the Supreme Court, the Constitutional Court, or the Prosecutor’s Office, and hand it over to the JWC.
The JWC and journalists have a kind of “symbiotic relationship”. The JWC can publicize what it wants to publish with the help of journalists, and the latter can get information and knowledge of news value from the former. Sometimes, they conflict each other, but infrequently.
Conclusion
The watchdog activities of various NGOs are important for consolidation of democracy in a newly democratized country, because watchdogs can awaken people to the exercise of powers by the state, and power-holders are compelled to be always conscious of the eyes of the people. Where the judiciary is concerned, such watchdog activities are of special importance, because the judiciary may hide itself behind legalism and jurisprudential professionalism, which are unfamiliar to ordinary citizens. Any judiciary that is outside of people’s oversight, can be easily mobilized to serve the political powers and/or their own interests, not those of the people. So, people have to oversee a judiciary on which they have little information and knowledge. The strategy of the JWC is to serve as an intermediary in the watchdog role.
Although the JWC is made up of legal professionals, its special quality is that it must be backed up with the common will of the people. Actually, the work of the JWC is above all controlled by the standing committee of the PSPD, which consists of ordinary citizens who represent diverse sectors of the society. The JWC itself does its best to communicate with the public through open panels for discussion, seminars, webpages, journals, and face-to-face talking as well. Such willingness and endeavours to stay among the people are the basis of the people’s credence in the JWC. Keeping in constant touch with the public and mobilizing its members are efficiently combined together in the JWC’s activity – that must be the real strength of the JWC.
