[The Editors' Verdict] Montesquieu and Kim Byungro's Message to Future Judges

When the Judiciary Upholds Its Independence and Duty
to Check the Excesses of Legislative and Executive Power,
the "Freedom of Citizens" Can Breathe

There is an old courtroom joke about the 'essence of a trial.' In a criminal court, the judge, the prosecutor, the defense attorney, and the defendant are seated. Who among them knows the truth best? It would be God, who sees all, and the defendant himself. Next would be the defense attorney, who communicates directly with the defendant, and the prosecutor, who has investigated the defendant. In that case, the judge is the farthest from the truth. Yet, a trial is... a process in which the judge, who is farthest from the truth, passes judgment on the defendant, who is closest to it.

Another piece of satire has also been passed down. A man became embroiled in two lawsuits at the same time. One was a divorce suit filed by his wife, claiming he was impotent. The other was a paternity suit filed by someone claiming to be his illegitimate child. The man comforted himself, thinking that at least he would win one of the two. But he lost both. This was because each case was tried by a different judge in a different courtroom.

The reason humor and satire have such vitality is that they reflect reality and resonate with people living in the same era. As many who have experienced trials feel, the judicial system (the courts), which passes judgment on humans on behalf of God, is riddled with imperfections and contradictions, and perhaps it is something that can never fully satisfy all parties involved.

Nevertheless, if one asks, 'Why is the judicial system necessary, and why must it function properly?' I believe the French thinker Montesquieu (1688?1755) provided the answer. Montesquieu, who belonged to the robe nobility that inherited high court judgeships, turned away from a comfortable life and wrote The Spirit of the Laws, in which he insightfully argued that 'power is inevitably abused, and if a single group holds all power, there can be no freedom for citizens.' He thus advanced the model of judicial independence and the separation of powers.

According to Montesquieu, the judiciary 'represents everything, but at times represents nothing.' The courts can fully establish their rightful place only when they check the unchecked power of the executive (which wields physical force) and the legislature, thereby protecting the freedom of citizens. However, when the judiciary bows to the might of power and shirks its responsibilities, it loses its very reason for existence.

As for the attitude judges should have in exercising judicial power, the first Chief Justice, Kim Byungro, showed the way. Kim Byungro often said, "Even if the whole world falls into injustice, one must defend justice to the end," and, "If you cannot uphold the duties of a judge, you should leave." When President Syngman Rhee criticized in the National Assembly that "judges exercise rights unprecedented in the world," Kim replied, "If you object, file an appeal." Kim Byungro was a principled scholar who personally demonstrated that 'the only way to curb the tyranny of power is through the independence of the judiciary.'

I am not alone in thinking that the judiciary is now in a more precarious situation than ever. When the court's issuance of arrest warrants is not to their liking, mobs storm court buildings, and when Supreme Court rulings are unfavorable to them, politicians talk openly of impeaching the Chief Justice, investigating, and holding hearings. On the 'arrest list' of a reactionary emergency martial law plan, former Chief Justices and Supreme Court Justices were included, and a political party with 'democracy' in its name even said, "It is time to bring down the separation of powers."

In the end, judicial independence is something that judges themselves must protect. I hope that each and every judge will recall the insight of Montesquieu and the integrity of Kim Byungro?so that 'the freedom of citizens' can continue to breathe.