Consultations With President Lee Collapse, Dereliction of Duty?...Can an Incumbent Supreme Court Chief Justice Be Investigated?

[Financial News] As controversy surrounding Supreme Court Chief Justice Cho Hee-dae’s written recommendation of a Supreme Court justice candidate has escalated into a criminal case, attention is focused on whether the allegations of abuse of authority and dereliction 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 collapse of consultations between the president and the chief justice must be distinguished from a violation of a legal duty.
On the 2nd, legal sources said the CIO recently assigned to its First Investigation Division, headed by Chief Prosecutor Na Chang-soo, a case filed by Citizens’ Action for Establishing Judicial Justice against Cho Hee-dae and Noh Gyeong-pil, head of the National Court Administration. The complaint alleges abuse of authority and obstruction of the exercise of rights, as well as dereliction of duty. The CIO is devoting its full efforts to the investigation.
Citizens’ Action for Establishing Judicial Justice claims that Cho Hee-dae obstructed President Lee Jae Myung’s legitimate exercise of appointment authority by unilaterally submitting a written recommendation of Judge Son Bong-gi of the Daegu District Court as a Supreme Court justice candidate, disregarding established practice. Regarding the dereliction-of-duty allegation, the group argues that Cho deliberately neglected his duties by failing, without legitimate reason, to recommend a successor to former Supreme Court Justice Rho Tae-ak for more than seven months.
Legal experts say the elements of the two alleged offenses 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 recommendation by the chief justice. Although the Constitution expressly provides for the chief justice’s recommendation and the president’s appointment, it does not separately state that the president and the chief justice must reach an agreement before the recommendation is made.
In practice, however, there was not a complete absence of consultations between the Supreme Court of Korea and the presidential office. Noh Gyeong-pil said at a full meeting of the National Assembly’s Legislation and Judiciary Committee on the 19th of last month that he had attempted to consult the presidential office 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, a lawyer at Daeryun Law Firm and a former chief judge, said, “Failing to hold consultations is different from holding consultations but failing to reach an agreement because the two sides wanted different candidates.” He added, “We also need to examine whether the chief justice can be deemed not to have consulted merely because the candidate preferred by the president’s side was not accepted.”
Baek Jae-seung, a lawyer at Merit Law Firm, also explained, “Dereliction of duty is an offense that arises when a person has an official duty to perform but fails to do so.” He continued, “Ultimately, this case requires determining whether the chief justice had a specific legal duty to recommend a candidate by a certain point and whether there was no legitimate reason for the delay in making the recommendation.”
The investigation will also examine the fact that consultations over the candidate continued between the presidential office and the Supreme Court of Korea during the delay in the recommendation. Baek said, “Ultimately, the chief justice exercised the authority to make the recommendation.” He added, “It is necessary to distinguish between simply failing to make the recommendation in the manner or at the time desired by the president and intentionally neglecting one’s duties under criminal law.”
Another expected issue in determining the abuse-of-authority and obstruction-of-rights allegation is whether any specific right exercised by the president can be considered to have been obstructed. Some also 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 primarily as a question of criminal liability.
A judge at a Seoul court said, “If the issue concerns the extent of the authority held by the president and the chief justice, 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 question Cho Hee-dae directly. There has never been a case in constitutional history in which an incumbent head of a court was directly questioned. Legal experts, however, believe that before deciding whether to summon an incumbent chief justice, investigators will first review whether the allegations of abuse of authority and dereliction of duty can be legally established.
A lawyer and former chief prosecutor predicted, “If the allegations are sufficiently substantiated, there is no reason not to investigate someone merely because he is the chief justice.” The lawyer nevertheless added, “Conversely, if investigators conclude that the elements of the offenses themselves are difficult to establish, summoning an incumbent chief justice could place a considerable burden on the investigative authorities.”
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 allegations of abuse of authority and dereliction of duty. Attention is therefore focused on whether an investigation into President Lee Jae Myung will actually take place. The committee previously argued that President Lee Jae Myung had failed to submit to the National Assembly the nomination consent bill for Judge Son Bong-gi, whom Cho Hee-dae had recommended as the successor to former Supreme Court Justice Rho Tae-ak, and had instead demanded that another candidate be recommended.
[email protected] Yoo Sun-jun Reporter