"Arbitrary Assignment of Judges... Decline in Trial Fairness
Concerns Over Politicization of Judiciary and Erosion of Public Trust"
The Supreme Court's National Court Administration has submitted an official opinion to the National Assembly regarding the "Special Act on Rebellion," which centers on the establishment of a special tribunal for rebellion cases. The administration stated that there is potential for constitutional controversy, including concerns about infringement on judicial independence and a decline in public trust in the fairness of trials.
According to the office of Song Seokjun, a member of the National Assembly's Legislation and Judiciary Committee from the People Power Party, the National Court Administration submitted its "Review Opinion on the Special Act on Follow-up Measures for the December 3 Martial Law and Protection of Whistleblowers (Special Act on Rebellion)" to the National Assembly on August 29.
The National Court Administration pointed out several issues regarding the appointment of special judges for warrants and the establishment of a special tribunal, including: infringement on judicial independence; concerns about declining trust in the independence and fairness of trials; potential violation of the right to be tried by a judge; ambiguity regarding the status and qualifications of special warrant judges and special tribunal judges; and the risk of politicizing the judiciary. The administration emphasized the need for careful consideration of these matters.
The administration stated, "If the National Assembly or the Korean Bar Association becomes involved in appointing special warrant judges or forming a special tribunal for specific cases, thereby influencing the allocation of work and assignment of cases, this in itself constitutes an infringement on judicial independence."
The National Court Administration also expressed concern that "the composition of the candidate recommendation committee for special warrant judges and the special tribunal, as well as the structure for recommending and appointing candidates, is highly political." The administration warned that this could give rise to new suspicions and distrust regarding the political neutrality, independence, and objectivity of individual trials, and could further fuel political controversy over the judicial actions of judges.
The administration further noted that even if the law is enacted and a special tribunal is established, constitutional controversy could persist. The administration emphasized, "Under the current Constitution, only military courts are allowed as special courts, and, in principle, other special courts are not permitted according to the majority view in academia. Therefore, establishing special warrant judges and a special tribunal to adjudicate specific cases could be interpreted as an unconstitutional system not anticipated by the Constitution."
Additionally, the administration pointed out that transferring ongoing trials to a special tribunal could make prompt proceedings difficult, as existing evidence investigations may be rendered void due to the need for trial renewal procedures. If the trial renewal process is simplified to address this, it could result in violations of the defendant's right to defense and the principle of direct examination, creating contradictions.
Meanwhile, regarding the provision that would disqualify Supreme Court justices appointed by former President Yoon Suk Yeol, the administration expressed concern, stating, "If seven justices are disqualified, it would be impossible to form a full bench with at least two-thirds of all Supreme Court justices, as required by the Court Organization Act."
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