[4th EAI Academy] ⑤ The 'Judicialization of Politics' and the 'Politicization of the Judiciary'

YouTube link: https://www.youtube.com/watch?v=BtW8dFLs98E

Video Transcript

The topic I was given is the judicialization of politics and the politicization of the judiciary. This was not a topic I chose myself; rather, the organizers of the 'Vision for Korean Politics for Future Generations, 4th EAI System Planning' series deemed it necessary for discussion and assigned it to me. I believe the Director has organized an excellent series. To speak somewhat provocatively, in the discourse on democracy in our country, law, the legal system, or the judiciary are somewhat excluded. According to the reading material provided today, which discusses democracy and the rule of law from a constitutional perspective, one might mistakenly believe that the rule of law is a separate issue from democracy and thus need not be discussed together. The fact that this series, which deals with politics and democracy, includes the realm of law and the judiciary in its discussion of Korean politics demonstrates the wisdom and insight of the planners.

I dare to say so, not because I have a particular perspective of viewing Korean politics through the lens of law, nor because I make a living from it, so to speak. Rather, I believe it is an opportunity to emphasize that the two must function together, representing a complementary and parallel perspective or guiding principle. When you all understand and discuss Korean politics, you will find these aspects. Especially today, politics is excessively judicialized, as the expression goes. In the title, they are presented in parallel, but the judicialization of politics and the politicization of the judiciary are not parallel issues; they are in a cause-and-effect relationship.

In fact, the politicization of the judiciary is a side effect of the judicialization of politics. While the reverse is not entirely impossible, it is not the usual course of events, and it is a consequential aspect. Thus, there is an aspect of cause and effect. However, phenomenologically, they can coexist. We must discuss the alternatives separately and also in conjunction. This concludes my general remarks in the introduction. I will now proceed with the parts I have prepared for our discussion. I assume you have all read the lecture materials provided in advance, so I will proceed relatively quickly and look forward to a more interactive discussion with you all. I tend to get quite animated when I lecture.

You may witness this today as well. In my enthusiasm, if I end up doing a one-man show, I hope you will feel free to interject and engage with me more comfortably. The judicialization of politics – what is its definition? We don't need to delve into a lengthy discussion of the basic concept; it is as it sounds. What is politics? In English, it's 'politics,' derived from 'polis,' referring to the affairs of many people within a city-state. I am speaking in a very general sense, as some scholars define it. However, the question you might want to ask is, why do we translate and use the term 'politics'?

It's a Sino-Korean word, isn't it? While the concept originated in the West, politics was discussed in China long before we knew the term 'politics.' We use the term 'politics' because it corresponds to what was called 'politics' in China. When we say 'politics,' what did they mean by 'politics' in the East, specifically in China? I heard this from someone else. Mencius defined politics as 'governing justly' (正, zhèng), meaning 'to govern justly' (治, zhì). He said, 'One must govern justly.' The word 'zhèng' itself carries a meaning far beyond what we generally think.

In terms of meaning, 'zhèng' can refer to the affairs of state, the governance of a nation. However, from a legal perspective, it can also refer to regulations related to politics. So, when we say 'national administration' (국정, gukjeong), it can mean the affairs of the nation, as we understand it. The word 'jeong' (정) is inherently included in 'gukjeong.' When we use the term 'politics' (정치, jeongchi) in general, the character 'jeong' is directly included. Crucially, the meaning of 'law' (법, beop) is also embedded within it. When we discuss the separation of powers, we refer to the legislative, executive, and judicial branches.

Legislation is related to politics, isn't it? The National Assembly, which is the most political institution among our branches of government, is responsible for making laws. What is its primary function? To make laws. Then there is the executive branch (행정, haengjeong). The character 'jeong' appears here as well: 'to carry out' (행, haeng) 'politics' (정, jeong). It is also a political institution. The head of the executive branch, whom we call the President, is the head of state and holds executive power according to our Constitution. Article 66 of the Constitution states that the President is the head of the executive branch, and Article 66, Paragraph 4, states that executive power belongs to the executive branch headed by the President. The institution to which executive power belongs is called the executive branch, and its head is the President. When we speak of executive power, 'haengjeong' means 'to carry out the affairs of the nation'.

While this meaning is certainly included, the specific meaning also encompasses carrying out or executing matters prescribed by law in relation to politics. It also includes the meaning of law. The executive branch is sometimes referred to as 'haengbeop' (행법), meaning 'executive law.' Therefore, the rule of law must go hand in hand with the rule of politics. In other words, politics and the rule of law form two sides of the same coin, a concept that is fundamentally embedded in our basic notions. If we say 'executive branch,' it can be replaced with 'executive law'.

It also carries the meaning of law. If we understood this, we wouldn't need to discuss it further. However, we tend to neglect these basic concepts, and our academic system, heavily influenced by Western academic traditions, also tends to overlook these origins. I am explaining this at length because the essence of today's judicialization is that while the two are intertwined, there are clearly parts that must remain separate. This is why we separate political power into legislative and executive branches, and why we distinguish between legislation and execution, even though both are related to law. And above these, there is a third branch: the judiciary. This branch interprets and resolves disputes through trials. Here, the word 'law' is present, and the word 'trial' is present. The judiciary resolves disputes. However, what is embedded within this is 'decision-making.' So, all three branches are intertwined with law and politics. When discussing current issues, many conversations revolve around the stages related to the politicization of the judiciary. However, if we consider the judiciary as completely separate from politics, it can lead to absurd results that defy common sense. For example, we vote.

We have electoral districts, don't we? We vote there. When we vote for members of the National Assembly, how many votes do you cast? You cast two votes, don't you? One for whom, and one for whom? One is for the district. This is a common topic related to electoral systems, isn't it? Under the current electoral law, which uses a small-district plurality system or a relative majority system, there are 253 electoral districts for electing 253 members of the National Assembly. For the remaining 47 members, how do we vote? We don't vote directly for individuals; we vote for something else.

Political parties. Before the Constitutional Court ruled on the election law, it was a one-person, one-vote system. Although you cast one vote, how that vote was allocated was primarily used to elect district representatives. Legally, it was interpreted as a vote of support for the political party that nominated the candidate, and these support votes were aggregated to allocate seats. Although the vote is presented as being for an individual, it was effectively considered a vote for the political party. What structural problems would arise from this?

What about independent candidates? There are independent candidates in the districts, aren't there? Candidates who did not receive party nomination. If there were no such candidates, there would be no problem. But there are such candidates in Korea, weren't there? What happens to the votes cast for independent candidates? They become non-existent votes in the allocation of proportional representation seats. On what grounds are they non-existent? It's unequal. It's unfair. Therefore, it violates the principle of equal suffrage. Article 67, Paragraph 1, states that elections for members of the National Assembly and the President shall be conducted through universal, equal, direct, and secret suffrage.

The system of allocating proportional representation seats while maintaining a one-person, one-vote system was deemed to violate the principle of equal suffrage. It was also considered to violate the principle of direct election. Why? Because the support for a political party is counted as a vote for the party, not for the candidate nominated by the party. I might prefer candidate Kim A, but I prefer Party A. Why am I forced to choose only one when I cannot choose both? It's a vote for the party. However, individual candidate elections are reflected 100%. But party votes might not be. It forces people to go in that direction, preventing them from directly expressing their preference for a political party. This is how it was interpreted.

This is a political issue, isn't it? But why did the court intervene and declare the election law unconstitutional? Because it violated the principle of equal suffrage. The election law was declared unconstitutional, and therefore, elections held under that law would also be invalid. Should the court not intervene in such matters because they are political issues? Such interventions are very common. For example, suppose the National Assembly holds a vote. Sometimes, although secret ballots are supposed to be used, they are effectively open ballots, and there are procedural flaws. Even if we overlook that, suppose the vote count is incorrect, and one extra vote is cast.

Suppose a total of 60 people are supposed to vote, but 63 votes are cast. The election is invalid. However, the outcome of the vote was that 50 out of the 60 people overwhelmingly approved the motion. Only three votes were invalid. Should the election be invalidated? Or should the outcome be recognized, given that the invalidity was due to a very minor procedural flaw? Is there a correct answer? Some might say yes, but is that truly the correct answer? Court rulings are overturned all the time. And in each ruling, there is a majority and a minority of judges. While it might be eight judges in some cases, even among the majority, in Korea, the Constitution requires at least six justices to declare a law unconstitutional, as stipulated in Article 113.

So, if six or more justices believe it is unconstitutional, as in the case of the election law I mentioned earlier, it is declared unconstitutional. However, if five justices believe it is constitutional, it is not. There are unavoidable aspects in elections. Considering various other objectives of elections, some degree of inequality might have to be tolerated. In fact, prior to that, they had ruled it constitutional. But look, it's 5 to 4. Naturally, the majority's decision should prevail, making it unconstitutional. However, our Constitution requires a supermajority. Even if it's 6 out of 9, it's more than two-thirds.

So, as I mentioned earlier, the six or more members who considered the election law unconstitutional, as you believe, formed the majority. The committee has five members, but four do not believe it is. There is an unavoidable aspect in elections. Considering various other objectives of elections, some compromise on equality must be accepted. In fact, the Constitutional Court previously ruled this way. However, look, it is 5 to 4. Naturally, the majority's decision should prevail, but our Constitution requires a qualified majority, which exceeds even two-thirds.

What happens if five out of nine justices rule one way? What about public opinion? These complex factors are reflected. It's not easy. The correct answer is not necessarily among the options I've presented. However, is there a legal issue? Especially concerning constitutional issues and electoral systems, which have significant political implications. Let me give another example, although it's not in the lecture materials. During elections, if false information is disseminated and a fine of 1 million won or more is imposed, the election victory becomes invalid. This is currently stipulated in the election law. The current opposition party leader was accused of this during the Gyeonggi Provincial Governor election debate, questioning how his brother was forcibly institutionalized. His opponent was not present.

He was fined 1 million won and lost his position as governor. If confirmed, he would be barred from running for office for five years. He could not run in the last presidential election. The Supreme Court ruled otherwise, stating it was not a criminal offense. As a result, a sentence of less than 1 million won was imposed, allowing him to retain his position as governor and run for president. How many votes do you think he received in the Gyeonggi Provincial Governor election? Millions of people voted. Regarding the statement, some people might have considered it false information, while others might not have. My sentence was originally 3 million won. A 3 million won fine, compared to causing death, is incomparable. It's not even imprisonment.

So, does the 'anti-social nature' of such an act, its effect on disrupting social order, have the significance to invalidate the votes of millions of people? One can ask such questions. I am not asking these questions myself, but I want you to focus on the logic rather than the possibility of error in legal judgments. The number of votes cast in the last presidential election exceeded 30 million. The total number of eligible voters exceeded 40 million.

The voter turnout was about 77%, with approximately 32 million people participating. If the leading candidate, due to the dissemination of false information and a fine of 1 million won, were to have their election invalidated – let's imagine a scenario where the government and law enforcement agencies prosecuted and the court considered invalidating the presidential election. Would that be acceptable to you? Such a scenario is hypothetical, but the law is in effect. It has already happened at the provincial governor level. The Superintendent of Education in Seoul also faced issues because of this.

It is now reaching the presidential level. Is this a normal situation? The election of major national representatives is also a major national decision. Discussing this in a judicial process, not a political process or an election process – this is the judicialization of politics. To elaborate further, it is a political process. It involves political negotiation, compromise, and decision-making. We think, 'We must do it this way.' 'We must go down this path.' Even if someone thinks differently, it doesn't necessarily violate the law. But it is a political issue.

It is even extending to the presidential election. This is a major decision for a nation, isn't it? Debating this in a judicial process, a trial, rather than a political or electoral process. This is what is called politicization of the judiciary. To elaborate further, I would say it is a political process. It involves political consultation, compromise, and decision-making. We should proceed this way. Even if someone thinks differently, it does not necessarily mean the law is violated. It is a political issue.

The judiciary's role is to determine whether this person spread false information or not. Whether the election is invalidated or not, who benefits or loses – these are not considered. Only whether false information was spread or not is examined. Is this truly the appropriate scope? Some might argue that if one commits a crime, they should not be punished, regardless of whether they are a president, governor, or superintendent of education. If there is even the slightest flaw, they should not hold office. Regarding the National Assembly vote earlier, if three votes were cast, how do we know there were only three? One can easily speculate about conspiracies. This leads to discussions about election fraud.

However, as these situations become more frequent, why do we engage in the judicialization of politics? Does it feed us? When we make political decisions, do we do so rationally? When you vote, do you do so rationally? Since you are all here today, I assume you made rational decisions. But many people around you vote based on whether they like the candidate, whether they are from the same region, whether they have the same alma mater, or whether they are related. Do they not vote like this?

Perhaps unconsciously, these factors influence their vote. Yet, when it comes to disseminating false information, it is invalidated. In political science, the judicialization of politics is considered a significant issue, often viewed very negatively. Furthermore, it is argued that the fundamental principles of democracy and the rule of law are in conflict. This is a widely held view. While my argument might be perceived as such, is it not true that there are two sides to every coin?

How do constitutional principles conflict? Both hold value, and both must be harmonized, not in conflict. The system of judicial review of laws exists. Even if the National Assembly makes a political decision reflecting the will of the people, if it violates the Constitution, the supreme law, it must be reviewed through a judicial process. This was the prevailing view until the 19th century, that this should not be done from a democratic perspective. Since the mid-20th century, the opposite has been argued.

Members of the National Assembly do not perfectly represent the future. Therefore, a system must be in place to change them. However, they should not be changed arbitrarily. How should this be done? In Korea, unlike the United States, where a 5-4 decision by the Federal Supreme Court leads to unconstitutionality, even if five justices believe it is unconstitutional, it is not declared so. This is a matter of policy. There is also a system called an election lawsuit, related to elections. It allows for challenging the validity of election results and the invalidation of victories.

If systematic irregularities or vote-buying occur in the electoral system, what happens? Such actions are unacceptable. In a democracy, the representation of the people is the starting point. My earlier statement that election victories should not be arbitrarily invalidated should not be interpreted as advocating for free-for-all elections or vote-buying. While these are wrong, invalidating an entire election due to minor flaws is too extreme. There is a separate procedure for that. However, the case of a fine of 1 million won or more, which I mentioned earlier, leading to the invalidation of an election victory, is not an election lawsuit.

Election lawsuits, particularly for National Assembly elections, are handled only by the Supreme Court and must be concluded within six months. After six months, they cannot be filed. However, this is treated as a regular criminal case, similar to theft. The effect of that decision is attached as a supplementary penalty to the criminal punishment, invalidating the election victory. I believe this is unconstitutional. Using the phenomenon of election crimes, which are handled by the judiciary, to invalidate the outcome is contrary to the intended purpose of the constitutional system. What do you think?

I believe many of you agree with me. I dare to think so. Ultimately, these are matters without a definitive answer. However, my fundamental point is that it is an undeniable fact that it is not always beneficial for the judiciary to comprehensively deliberate national affairs based on legal logic. That is, it should not be excessive. However, my question is whether viewing it as generally bad is too one-sided. It has two sides. What should we do? Our task is to preserve the good aspects and mitigate the bad ones. Should we abolish the constitutional adjudication system? I oppose that.

Therefore, criticism is valid, and the Constitutional Court's decisions are sometimes wrong. Regarding the law that institutionalized the invalidation of election victories, it has consistently been ruled constitutional. I continue to argue that it is unconstitutional. Personally, I believe that one day it will be declared unconstitutional or the law will be changed. In any case, these are the issues. That is, it has two sides. There are types, and what I have said is largely included. Generally, policy decisions are now subject to judicial review. As democracy has developed, the rule of law has also developed simultaneously, and the judiciary has evolved to be able to control politics.

Let me give an example. There was the head of household system (호주제, hojuje), a typical example of male-centric family structure. It designated one person, the head of the household, to represent the family, and only a male could hold this position. Fundamentally, why should a woman not be the head of the household? It violates equality. Not everyone makes rational judgments or politically correct decisions. This is democracy and the political process. The judicial process assumes that judges will provide the correct answer based on the law. However, judges are also human beings and can make mistakes, or even serious errors due to a lack of understanding of the law, as in the case of invalidating election victories. This is due to a lack of understanding of the law and the Constitution. Is it logical that someone who spreads fake news can win an election? This is a very one-dimensional approach. Our politics is like that.

Of course, fake news is a serious problem. But look at our social interactions. How accurate are your memories? Look at Hong Sang-soo's films. How illusory are our memories? We are all here together today. My words and your understanding of them, your thoughts, are all different. Even if the same words are spoken, your interpretations will differ. This is the process of human interaction. This is the essence of politics, its strengths and weaknesses. The judiciary, being involved in this process, cannot be entirely free from subjectivity.

When selecting judges, people think they should be colorless and odorless. But that is one of the biggest misconceptions the public has. In fact, a judge who reveals their own biases can make a fair judgment. There is no criterion for selecting such a person. Thinking that such a person should be selected is a mistaken and erroneous idea. This does not mean that the judiciary is the same as politics. However, there are political elements in the judiciary, and decisions are made based on human behavior. While they are distinct, they are not entirely the same.

Therefore, indiscriminate judicialization is not necessarily bad. It has its benefits, and humanity has developed it this way. Democracy could not have developed without this control, and it is considered more progressive and evolved. I believe this. I will not go into all the examples, but I will give one recent example: the reform of the prosecution and the adjustment of its duties. The Constitutional Court has been approached, arguing that the law reducing the prosecution's duties infringes upon its constitutionally guaranteed authority and is therefore invalid.

What should be done about this? I am not providing the answer. But did the Constitution grant the prosecution such authority? Was the legislative power abused? These are questions to be considered. However, this does not mean the judiciary should refrain from intervening. I believe there are clear distinctions to be made. The presidential plane boarding refusal case was also brought before the Constitutional Court by the victim, and the Constitutional Court heard the case. The second time, the President changed his stance and allowed it. I dare to predict that it will likely be dismissed. Dismissal means that the claim is no longer valid, and the court does not rule on the merits of whether it is illegal or unconstitutional, but rather terminates the lawsuit because there is no longer a need for judgment.

If it is dismissed, what happens? It means the court does not rule on whether the President's action was right or wrong. It does not rule on it. However, some might interpret dismissal as a victory for the broadcaster, not realizing that the judiciary does not operate that way. There is a high possibility of such misinterpretation. This highlights the importance of civic education. The more we know, the less likely we are to make incorrect judgments. These are basic matters, yet many people are unaware of them. There are two reasons why a lawsuit is lost: one is that there is no legal basis for the claim, which is a true loss.

The other is dismissal. There are different types of dismissal. Sometimes, the plaintiff lacks the standing to sue. However, in cases like constitutional complaints, the constitutional right must be continuously violated. But if it is subsequently permitted, it might be considered wrong. However, if it is permitted now, there is no longer a reason for it. This is a legal technicality, but it is generally accepted in law. It is unlikely that the broadcaster will win. However, it is difficult to consider such a case as a loss.

In any case, such matters should be addressed. Whether the President abused his public authority should be examined by the courts. Similar to the issue of electoral districts, where the one-person, one-vote system was deemed unconstitutional, this is a matter that can be examined. However, there are many cases that are not suitable for such examination. There are purely political issues. For example, there are political organizations called political parties. Decision-making processes occur within them. Recently, there was a case where the party leader's suspension of duties was challenged in court. This is a highly debated issue among political scientists and constitutional scholars.

However, from a broader perspective, it is generally better to avoid such interventions. If a party leader cannot perform their duties and loses the support of party members, they should be able to step down even during their term. But if party members try to remove them for reasons unrelated to their term, it is unfair. In such cases, they might resort to legal action. Provisional injunctions are often granted initially. But is this the right approach? What happens if the party leader continues to hold power?

How beneficial will this be for Korean politics? Some people believe it will be beneficial, while others do not. Some may believe my opinion is correct, but it should be viewed as a perspective. There is no single correct answer. However, moving on, there are cases of suspension of nomination effects. In Korea, especially due to regionalism, where simply planting a flag is enough in certain regions, elections are meaningless. What is most important in such cases? Nomination through internal party primaries. Consequently, lawsuits to nullify nominations can be filed. But a political party is not like a class president election, is it? In cases like class elections, or among company shareholders, if the procedures are violated, shareholders may have no choice but to file a lawsuit. However, political issues are different.

There are also cases like the electoral system, which is purely political. However, there are also matters that can be considered general policy processes. The relocation of the capital, which is currently a contentious issue, is a matter of 'great politics' (거대 정치, geodae jeongchi). During the Roh Moo-hyun administration, although it was pushed by the government, the law was passed with bipartisan agreement in the National Assembly. However, the Constitutional Court intervened and declared it unconstitutional, citing infringement of the right to national referendum and violation of the Constitution. This is a purely political issue, as well as a core national agenda. Similar to how the court focuses on whether false information was disseminated in election invalidation cases, this is a similar situation. Whether it is a matter that warrants such intervention is debatable, but generally, it can be viewed as such.

Let's move on. Why has this happened? First, political situations have become democratized. This could not have happened under a dictatorial regime where the judiciary was subservient to the powerful. But with democratization and the separation of powers, there should be restraint. However, sometimes there is an eagerness to intervene. This is something that can happen in human affairs. Is it entirely wrong or entirely right? Second, politics has become extremely polarized.

I believe your lecture touched upon polarization. This is a phenomenon. No one can deny it. Although there are multiple parties in the National Assembly, only two parties have significant seats and form parliamentary groups. The system is not functioning. Therefore, when a decision is made, what happens? If civil society and the public have no expectations, they will not intervene. But now, they do. Democratization, overall political polarization, and finally, politicians' irresponsibility – these are representative examples, not an exhaustive list. Politicians avoid resolving issues themselves because doing so might anger their supporters. This is a complex situation. It might not be a good analogy, but imagine you are hired by a company and a dispute arises. You need to handle the case. Whom do you hire?

Do you hire the most reputable law firm, ranked number one, or a small firm with only a few lawyers? The large firm will charge a lot and, due to the sheer volume of cases, may not be able to dedicate full attention. The small firm, with fewer cases, can dedicate its full resources to a large case like this, and its experts are highly skilled. Which option would a corporate legal team choose? They would likely choose the large firm, regardless of the outcome. However, employees have the freedom to make decisions. They can say, 'Let's stop here.' But what about those who are employed? What would they do? If they go to the large firm and win, great. If they lose, well, it's the firm's fault. But if they go to the small firm, and they make a judgment call to go there, and they win, that's great. What happens then?

The world is not that simple. It is very complex. Even in this one aspect, how complex must politics and law be? To separate one from the other and move towards it is very dangerous. The systems that allow for such actions are also increasing. The Constitutional Court exists, so where else can we turn? If there is no recourse, what happens? This is a collection of what I have said in a more coherent manner. The political significance lies in ensuring that politics is conducted in accordance with the Constitution. This is the historical development of the rule of law. The rule of law operates within liberal democracy and a democratic republic, ensuring that politics adheres to the Constitution. From this perspective, as I mentioned earlier, democracy and the rule of law are intertwined. If there are deviations, they must be corrected. However, the micro-level issues I raised, which are seen by some political scientists as a conflict between democracy and the rule of law, are indeed a reality.

However, it is possible that one understands one aspect but not the other. Without the rule of law, democracy cannot exist. That is pure democracy. In other words, the democracy we speak of is value-oriented, aiming to protect the interests of the minority, and specifically, the purpose of establishing a community, a democratic republic, is to ensure our happiness. What constitutes happiness must be determined by ourselves. We are human beings, and because we are human beings, we are distinguished from other natural beings and possess inherent dignity and value from birth. Therefore, we confirm and guarantee the fundamental human rights of individuals.

Why does the state exist? According to our Constitution, the state does not exist by itself. Humans exist naturally, but the state is artificial. We created it. For what purpose? To confirm and guarantee the fundamental human rights of individuals. The state is a means, a tool. Individuals, by virtue of being human, regardless of whether they are Korean or American citizens, possess this status. The state is a tool, not an end in itself. Using humans as a tool contradicts this fundamental spirit.

Therefore, if the fundamental human rights of individuals, which are inviolable, are deprived due to the principle of majority rule, what happens? Is that democracy? According to our Constitution, that is not democracy. Individuals possess inherent dignity and value, and fundamental human rights that cannot be infringed upon. The state exists to protect these rights. If the state, based on the principle of majority rule, deprives an individual, Kim A, of their freedom of expression and freedom of the press to express their political or academic opinions, is that acceptable? This was a prevailing thought that dominated humanity just 100 years ago.

It was not long ago. The idea that human dignity, value, and individual rights are paramount, and that society is governed by these principles, has only recently begun to take hold. It has not been the dominant global ideology for even 100 years. In Korea, it has been less than 100 years. Yet, there are still tendencies to view the state as the supreme value and individuals as subordinate components, even today. A significant portion of the population still holds this view. The Constitution, I believe, holds a different perspective. They label those who hold such views as undemocratic or engage in smear campaigns. This is not universally true. Similarly, democracy is value-oriented. What is necessary to protect value-oriented democracy? It is the rule of law. Why is the Constitutional Court necessary? As mentioned earlier, it is a system that cannot tolerate the creation of electoral systems that violate equality, such as those that are nonsensical. It can also address situations where individuals who commit offenses, such as boarding the presidential plane illegally, are subject to disciplinary action and prevented from doing so. However, in cases that are not clearly defined, simply because one disagrees with them, is it acceptable to refuse? This could be an abuse of public power, and the Constitutional Court's role is to prevent such actions, not to wait for the President or anyone else to commit them. We will not tolerate such actions. This is the rule of law. Democracy without the rule of law is contrary to our Constitution.

Who made that law? It should be made by the National Assembly, composed of legitimate representatives. Can the President simply create a law because he deems it necessary? We have had such laws in the past. In 1972, the President could enact laws and issue emergency measures, which were equivalent to laws. This is dictatorship. The President, who is merely the head of the executive branch, usurped the legislative power of the National Assembly, the body representing the people. If the freedom of the press is suppressed, what happens? Should that law be obeyed simply because it is a law?

Why? Because we created the Constitution through democratic consensus, and that is what is decided. If something deviates from that, even if it reflects the majority opinion at a given time, it can be considered anti-democratic if it violates the Constitution. Democracy and the rule of law are, in the end, two sides of the same coin. The principle of majority rule is central to democracy, but it is not a panacea. It has limitations. There are constraints: the need to confirm and guarantee the fundamental human rights of individuals. This is what upholds the rule of law. It is not a principle that arises from conflict.

The principle of majority rule is not a panacea. It has limitations. There are constraints: the need to confirm and guarantee the fundamental human rights of individuals. This is what upholds the rule of law. It is not a principle that arises from conflict.

The agencies responsible for that may simply be clashing with each other. It is not a conflict of principles. Rather, it is about what meaning is assigned to the outcome. For example, before the introduction of the constitutional adjudication system, which principle would have been more strongly respected in principle? Let's consider the period before the introduction of the constitutional adjudication system, student Han Ho-jun. Even if a law is unconstitutional, as in the case of the electoral system mentioned earlier, if there is no system to declare it unconstitutional, which of the two principles would have been valued more highly?

Democracy as the supreme value, or the confirmation that democracy itself must be controlled? But what happens if that is reversed? As mentioned earlier, if we only consider the quorum of six people as an example and use a simple majority, what does that mean? It makes it easy. What does that emphasize? The rule of law. Thus, while the tension between democracy and the rule of law is a reality that manifests in the populace and phenomena, structurally, they are inherently intertwined to harmonize.

The phenomenon that emerges is merely a political or legal dispute between specific institutions at a specific time, not a conflict of principles. As we are running out of time for discussion, I will wrap up quickly. While the history of democratization and our political and judicial history can be analyzed in various ways, I will present three schematic models, or rather, perspectives on the relationship between politics and the judiciary, that are relevant to today's topic. Please observe.

This is before democratization, based on 1987. Formally, there were laws above the constitution, but under the absolute power of a specific dictator, everything was subject to their will. Even the courts were not free. Have you heard of judicial murder? It refers to sentences of death imposed for political reasons. Recently, apologies have been made, and retrials have led to acquittals. But this did not cease to exist. The so-called 'documentary trial,' where documents created by the prosecution just a few decades ago were directly quoted in judgments, especially in cases involving national security laws or public assembly laws, led to the derisive term 'documentary trial.'

The court accepted evidence not obtained through due process and used it. The court should control the prosecution, but if the law is merely used as a tool for governance, what I call the instrumentalization of the rule of law—while the rule of law is fundamentally a tool, it is a crucial mechanism for protecting citizens' human rights and democracy, as mentioned earlier. Even in a democracy based on majority rule, the rule of law can determine that something is wrong. However, when it becomes merely a means of governance, I call it the instrumentalization of the rule of law. 'If you haven't committed a crime, you have nothing to fear.' This is fundamentally correct in principle and morally and ethically, but it is a tremendous error.

What is the maximum practical effect of the constitutional principle that all persons are presumed innocent until a final verdict is reached? If we assume nine guilty individuals, should we release them even if it means that one innocent person is punished through the criminal procedure? This is the fundamental spirit of our Constitution based on the principle of presumption of innocence. What would be the opposite? Does it make sense to release nine people for one? Is that justice? What about the victims? However, there is also a point to that. What would be the result of that?

If that happens, it becomes a witch hunt. If they are accused, the clergy or officials have to prove their innocence. It is divine judgment. If the person did not commit a crime, God will protect them. They are thrown into boiling water. Who wouldn't scream when thrown into boiling water? It's either God's will or theirs. That is exactly the same as saying that those who are guilty should be confident in themselves. This is completely contrary to our Constitution, yet it is spoken as if it were obvious. Our Constitution clearly states:

Even those who are clearly guilty cannot be punished without evidence or solely on confession. This is stipulated in Article 12, Section 7 of our Constitution. Go and read it. And you know the Miranda Warning, right? It's on TV dramas. When arresting someone, they tell you that you have the right to remain silent and the right to an attorney. Even if you confessed, if the evidence is tainted, you cannot be punished. You might think, 'Does that make sense?' But that is the spirit of the Constitution. Why? Because if that is not recognized, fabricated espionage cases will occur. The spy should be punished, right? It's a time when such things don't make sense. There is no rule of law then. We have democratized, but the paradox of democratization is occurring.

Officials who invoke the rule of law must exercise their authority rationally within their original scope, with legal legitimacy. They must act in accordance with the principle of the presumption of innocence and due process, and in accordance with the principles of the rule of law. But if I can detain them, because I have doubts, I will detain them unconditionally, indict them unconditionally, and it's not my responsibility if they are found not guilty. If there is a high probability of innocence, they should not be indicted. Even if there is suspicion, they should be investigated without detention, in a fair and equal relationship. This is the basic principle of our Constitution. However, situations where detention becomes the norm must not occur. Such problems, warrant heaven, warrants are needed for detention, but from the request for a warrant, to the investigative authority, the prosecutorial directive authority, the prosecutorial discretion, and after the verdict is given, the execution of the sentence for those individuals, all of them

If the rule of law is realized by a single institution without decentralization, it may not cause particular problems if that institution performs well. However, power tends to corrupt when concentrated. It is inefficient. The person who made the law should know best, and that institution should enforce the law and handle any issues that arise. Isn't that dictatorship? I mentioned due process earlier. Sometimes there are cases that deviate from the law, but why do they do that? The consequences of not doing so are much greater. It's the same thing. A time when the rule of law is absolute without decentralization is occurring now. The law enforcement agencies in democratization must not interfere. We are a power that acts according to the law. If you are legitimate, respond confidently. There is a challenge there.

There is a task to ensure that politics and administration are carried out in accordance with this constitutional spirit through decentralization and democratization, i.e., control. I call this economic democracy. It is the mechanism that can ultimately maximize our basic human rights by establishing various systems that consider the possibility of error in all matters and control power institutions. In a democracy, the power of the people must be enhanced, and power institutions must be decentralized and mutually checked. This is a fundamental principle. Specific implementation details can be discussed later. When this relates to our political landscape, I have stated that there are two sides. The fact that we are neglecting these tasks is why things go wrong.

In some ways, those powers, for example, if the prosecution is doing something wrong, it would be desirable to divide the extensive authority held by the prosecution and have those institutions check each other. While this may not be a panacea, it could be desirable at our current level, as in many other countries. I will move on from this issue due to time constraints. What I have said so far is not significantly different from what I have said, but it gives us food for thought. Let's move on. This is about the negative aspects of the judicialization of politics. As I mentioned earlier, legal issues should be resolved as legal issues. However, since this is also a form of decision-making, it is impossible to completely ignore those considerations.

However, it should not go so far as to become a trial based excessively on legal logic. I said earlier that judges should not be ignorant. However, it is not true justice to push only one's own convictions, which are legally unfounded, due to excessive self-confidence. What we will ultimately discuss is that the exercise of power, even in the case of judicial power, must be restrained. If the judicialization of politics becomes excessive, the judiciary will deal with political issues more frequently, and there is a possibility that various pressures from appointing authorities will flow into the courts.

Inevitably, as it is a world where humans live, politicization occurs beyond its originally desirable scope, which is fundamentally negative. The politicization of the judiciary is not like the politicization of business, which has dual aspects. This is fundamentally negative. However, even if we consider the politicization of business to be negative, it is a significant error to claim that the judiciary never engages in politics or makes decisions without any political consideration. It is necessary to consider these aspects in all judgments made by humans. What is the law? The judiciary interprets the law. We must consider why that law was created. The interpretation is not fixed as a single correct answer. If it were, there would be no need for a judiciary; the legislature could simply do it. As mentioned earlier, everything is divided within itself. This implies that there is no single correct answer.

Isn't that right? The interpretation of law cannot be made completely excluding political perspectives and their effects. It is not done in a vacuum. I see the ideal state as one that strikes a balance between the two extremes. I think the East Asia Institute's equipment needs an upgrade. It seems like I'm losing more than 5 minutes. Let's move on. Let's move on. I need to press this button, but I keep pressing this one. To reduce the positive aspects of the judicialization of politics, the judicial power must be constituted democratically. It's all in the document I distributed, so please refer to it. Time is really running out. Next, even if judicial power is a political decision, it has its own unique methods.

It is based on objectivity and expertise. When inferring, it is not like making a political judgment, saying 'I think this is right, it's my opinion.' It must be done by providing evidence and going through a process of presenting evidence. Third, there needs to be an understanding of the judiciary's unique role. I may have made a statement earlier that could be considered insulting to our Constitutional Court justices, but they must have an understanding of the meaning of their judgments within the constitutional order. It is not something that can be exercised arbitrarily.

Of course, it cannot be said that the same conclusion will be reached even if it is done strictly, but it is necessary. And there are various misconceptions about it. It is said that judges must be impartial, meaning they must be free from all biases. This does not mean that they should have no perspective when interpreting the law. There is a perspective in interpreting the law. For example, in difficult cases, called hard cases, where the outcome is not easily determined, there is a possibility of disagreement in over 80% of cases. What determines that? That is where sentencing comes in. I emphasized freedom of expression earlier.

Freedom of expression also includes the dissemination of fake news. However, the question is, to what extent does fake news fall under the scope of freedom of expression related to national security? When balancing these, it is very difficult to judge. At the final moment, where will I bet? Since national security, once undermined, is irreversible, I will bet on national security. Because there is a much higher possibility of corruption, I will respect the individual somewhat. Such reflection is necessary. In summary, my conclusion on the judicialization of politics is that it is fundamentally natural.

These are not separate; rather, a democratic republic, as we commonly refer to it, is a state where democracy and the rule of law are integrated. Therefore, while democratic rule of law or rule-of-law democracy may emphasize the democratic aspect from a democratic perspective and the rule-of-law aspect from a legal perspective, neither can be an absolute truth in its respective domain. Integration is necessary. Therefore, even if the conclusions of political scientists and legal scholars differ on certain issues, there should be more common ground. Thus, even when specializing in law, one cannot abandon interest in political reflection and political science. Many of you, my students, are majoring in political science and international relations. As I have said, this democratic politics is about coexisting with the rule of law.

If you understand that justice originally does not involve law, then you will be able to make correct judgments about the judicialization of politics.