Failed Consultation with President Lee: Dereliction of Duty? Can an Incumbent Chief Justice of the Supreme Court Be Investigated?

[Financial News] As controversy surrounding Chief Justice Cho Hee-dae's written recommendation of a Supreme Court justice nominee has escalated into a criminal case, attention is focused on whether charges of abuse of authority and neglect of duty can actually be established. The Corruption Investigation Office for High-ranking Officials (CIO) has launched a full-scale investigation, while legal experts say the breakdown of consultations between the president and the chief justice must be distinguished from a violation of a legal obligation.
On the 2nd, legal sources said the CIO recently assigned to Investigation Division 1, headed by Chief Prosecutor Na Chang-soo, a case filed by Citizens' Action for Establishing Judicial Justice against Chief Justice Cho Hee-dae and Noh Gyeong-pil, head of the National Court Administration, on charges of abuse of authority and obstruction of the exercise of rights and neglect of duty. The CIO is devoting all its efforts to the investigation.
Citizens' Action for Establishing Judicial Justice claims that Chief Justice Cho Hee-dae unilaterally submitted a written recommendation of Judge Son Bong-gi of the Daegu District Court as a Supreme Court justice nominee, disregarding established practice and obstructing President Lee Jae Myung's lawful exercise of personnel authority. Regarding the neglect-of-duty allegation, the group maintains that Cho intentionally failed to perform his duties by not recommending a successor to former Supreme Court Justice Rho Tae-ak for more than seven months without legitimate cause.
Legal experts say the elements of the two charges must be examined separately. In particular, regarding the abuse-of-authority allegation, a key issue is how much legal significance can be attached to the “consultations” traditionally held between the president and the chief justice during the recommendation process for Supreme Court justices.
Article 104, Paragraph 2 of the Constitution stipulates that Supreme Court justices are appointed by the president with the consent of the National Assembly upon the recommendation of the chief justice. Although the Constitution expressly provides for the chief justice's recommendation and the president's appointment, it does not separately require the president and the chief justice to reach an agreement before the recommendation is made.
In practice, however, it is not true that there were no consultations at all between the Supreme Court of Korea and the Office of the President. Noh Gyeong-pil said at a full meeting of the Legislation and Judiciary Committee of the National Assembly on the 19th of last month that he had attempted to consult with the Office of the President four or five times during the month or so since taking office. He explained that “we consulted until the very last moment, but failed to reach an agreement.”
Shin Il-soo, an attorney at Daeryun Law Firm and a former chief district court judge, noted, “Failing to consult is different from consulting but failing to reach an agreement because the two sides wanted different candidates. It is also necessary to examine whether the chief justice can be deemed not to have consulted simply because the candidate preferred by the president's side was not accepted.”
Which specific exercise of the president's rights could be considered to have been obstructed is also expected to become an issue in determining whether the charge of abuse of authority and obstruction of the exercise of rights applies. Some argue that this matter should be viewed as a constitutional dispute over the appointment authority of the president and the recommendation authority of the chief justice, rather than as a matter of criminal liability.
A judge at a Seoul-based court said, “If the issue concerns which of the president and the chief justice has authority, and to what extent, it may be worth approaching it as a question of constitutional authority and examining it legally rather than treating it as a criminal complaint.”
There is also interest in whether the CIO will directly question Chief Justice Cho Hee-dae. There has never been a case in constitutional history in which an incumbent chief justice of the Supreme Court was directly questioned. Legal experts, however, believe that before deciding whether to summon an incumbent chief justice, investigators will first review whether the charges of abuse of authority and neglect of duty can be legally established.
An attorney and former chief prosecutor predicted, “If the allegations are sufficiently substantiated, there is no reason not to investigate him merely because he is the chief justice.” The attorney added, “Conversely, if investigators determine that the elements of the crime itself are difficult to establish, summoning an incumbent chief justice could place a considerable burden on the investigative agency.”
Meanwhile, the Committee for the Protection of Ordinary People's Livelihood also filed a complaint with the Seoul Metropolitan Police Agency against President Lee Jae Myung on charges of abuse of authority and neglect of duty. Attention is therefore focused on whether an actual investigation into Lee will take place. The committee previously argued that Lee's failure to submit to the National Assembly the appointment-consent motion for Judge Son Bong-gi, whom Chief Justice Cho Hee-dae recommended as Rho Tae-ak's successor, and his request for a new recommendation were problematic.

[email protected] Yoo Sun-jun Reporter