hankyoreh

Supreme Court Chief Justice Yang Sung-tae (centre) at the Supreme Court in Seoul’s Seocho district for a ruling in the case of former National Intelligence Service Director Won Sei-hoon on charges of interfering in the 2012 presidential election

Chief Justice Yang Sung-tae has led the Supreme Court for over four years now - and the public’s verdict is not good. Repeatedly, the judiciary has cast aside its mission of protecting minorities and the vulnerable members of society to side with the politically and economically powerful instead. Some of its rulings have appeared to repudiate previous Supreme Courts’ reflections on their shameful past of collaboration with dictatorships. Things have reached the point where many deride the court for turning a blind eye to democracy-threatening crimes by state institutions and working to protect the administration rather than serving as a bastion of human rights.
Since Yang took over as Chief Justice, trust in the judiciary has hit rock bottom. Last August, the Organisation for Economic Co-operation and Development (OECD) announced that just 27% of South Koreans expressed trust in their judicial system as of 2013, placing it fourth from the bottom among 42 countries examined. The only countries ranking lower - Colombia, Chile, and Ukraine - are notorious for widespread corruption and crime. A July 2014 survey of trust in state institutions by the Asan Institute for Policy Studies similarly found a rating of 3.69 out of 10 for the courts, putting them tenth out of eleven institutions examined. In the past, the court experienced a brief boost in public support with its efforts to reflect on the past and bold innovations like jury trials; all of that is gone now. The Hankyoreh looked back on the last four years of a court under Yang that has done anything but serve the people.
“The fact that the judiciary is not elected like other state institutions was a Constitutional decision made to entrust it with the special mission of protecting the rights of minorities and socially disadvantaged.” That was Yang himself speaking during his inauguration as the Supreme Court’s fifteenth Chief Justice on Sept. 27, 2011. At the time, it was taken as a sign of his strong commitment to protecting the vulnerable and socially disadvantaged. Over four years later, his address now sounds more like lip service to the idea. In seemingly every major issue it has faced, the court has sided with authorities and the socially powerful instead.

The Yang court’s disregard for the socially vulnerable comes through clearly in its rulings on labor-related cases. Examples include a 2014 ruling finding 2009 layoffs at Ssangyong Motor justified and a 2015 ruling that refused to acknowledge the regular worker status of crew members on the KTX high-speed train service. What both rulings have in common is that they overturned first and second court verdicts that sought to protect the more vulnerable workers over their employers. Instead of encouraging lower-court rulings that embodied the judiciary’s mission, the highest court in the land has been squashing them.

The court’s harshness toward unions could be a reflection of Yang’s own political leanings. As a Justice in Nov. 2010, he led a ruling assigning jail time to demolition protesters as chief judge in the Yongsan Tragedy case, a 2009 incident where six people died amid police attempts to break up the occupation of a building in Seoul that was slated for demolition. While police officers confessed that the incident occurred because of overzealous suppression tactics, their testimony was disregarded, and the court found the police commando unit justified in its reckless operation. It also accepted the argument from prosecutors that the low-income residents’ decision to occupy the watchtower and demand just compensation for having their homes and workplaces taken away for the sake of indiscriminate redevelopment constituted a “terrorist group action.”

“Chief Justice Yang is very self-assertive. Not many Justices on the court right now are willing to stand up to him,” said a former Supreme Court Justice.

Another verdict showing the pro-business sympathies of the court’s mainstream came on Feb. 19 with an en banc ruling to allow the Valeo chapter of the Korean Metal Workers’ Union to operate as a business-specific union. An eight-Justice majority allowed the change according to the principle of liberty of contract, one of the fundamental tenets of civil law; the Valeo union members, they argued, had voted to approve on their own free will. But some critics said the ruling overlooked the spirit of the Constitution and its guarantees on three major labor rights to protect the interests of workers who are not protected by civil law principles.

“The judges who make up the judiciary’s mainstream tend to prioritize employers and protecting their management rights over the more socially vulnerable workers,” said another former Supreme Court Justice. “Since they make up a majority of the Supreme Court too, you see a lot of rulings that go against worker interests.”

Overruling remorse for past mistakes?

When Lee Yong-hun was inaugurated as Chief Justice of South Korea’s Supreme Court in Sep. 2005, he apologized for the past mistakes made by the country’s judiciary. After that, the Supreme Court took action to correct these mistakes by holding retrials.

But since Yang Sung-tae became Chief Justice, the Supreme Court has made a series of decisions that would appear to reverse this remorse for the past.

In Mar. 2015, the third panel of the Supreme Court (with Hon. Kwon Sun-il presiding) overruled a decision made by a district court that ordered the state to pay 2 million won (US$1,680) in damages to an individual surnamed Choi who had been detained for 20 days for violating Emergency Measure No. 9. The logic behind the court’s ruling was that, since the emergency measures taken by a president represent high political acts of state, they do not entail legal responsibilities for individual citizens.

This flew in the face of a decision made by the full panel of the Supreme Court in 2010, when it ruled that the emergency measures were unconstitutional, since even a president’s acts of state should not violate the constitution or the laws. By refusing to acknowledge the state’s responsibility to compensate victims of the emergency measures, the court also refused to acknowledge that President [Park Chung-hee] had broken the law when he issued the emergency measures. Thus, this is seen as a rejection of the court’s own previous ruling that the emergency measures had been unconstitutional.

In a number of decisions, lower courts have criticized this kind of logical contradiction.

Early last month, the 13th civil settlement division at the Gwangju District Court deliberately attacked the Supreme Court. “The Supreme Court’s sudden denial that the emergency measures were unconstitutional weakens the historical significance of its ruling of unconstitutionality,” the Gwangju court said.

In Sep. 2015, the 11th civil settlement division at the Seoul Central District Court broke ranks with the Supreme Court by ordering the state to pay 100 million won in compensation to an individual surnamed Song who was convicted of violating the emergency measures for his criticism of President Park Chung-hee.

In 2013, a full panel of the Supreme Court granted a request by a woman surnamed Cho for the state to pay criminal compensation for her late husband Hong Jong-min, a dismissed reporter at the Dong-a Ilbo who was found guilty of violating Emergency Measure No. 9. But at the same time, the court did not acknowledge that the state was responsible for paying compensation for illegal activities.

The bizarre argument employed by the court was that, even granting that the emergency measures were unconstitutional and invalid, individuals would have to demonstrate that torture or some other illegal activity had taken place before they could receive compensation from the state.

Given that the majority of Supreme Court decisions that aim to reverse positions of the past have come in cases of human rights violations that took place during the regime of former president Park Chung-hee, there is speculation that the highest court is trying not to offend current President Park Geun-hye, the former president’s daughter.

“The court is overturning all of the decisions related to the past, as if to suggest that the previous chief justice was wrong to express remorse for the past,” said a lawyer who had formerly served on a high court.

Guardian for human rights, or for the government?

In July 2015, the full panel of the Supreme Court unanimously overturned a decision by a district court that had convicted former National Intelligence Service (NIS) director Won Sei-hoon – the main culprit in the comment scandal - on charges of violating the Public Officials Election Act.

In its verdict, the Supreme Court only took issue with the force of the evidence, without ruling on guilt or innocence. But since the court denied the evidential force of a file containing Won’s instructions, which was the key grounds for his guilty verdict, the prevailing view is that the court basically found Won not guilty.

The fact that the decision was made unanimously by all the Supreme Court justices has raised suspicions that the decision was politically motivated. Generally speaking, cases are brought before the full panel of the Supreme Court when there are differences of opinion in a smaller panel composed of four justices. On Particularly significant or important cases are occasionally brought before the full panel even when the judges on the small panel are in agreement, but this doesn’t happen often.

“If the decision was unanimous in the full panel, this means that there was also agreement in the small panel,” said a lawyer who had previously worked in the Office of Court Administration. “The fact that the case was brought before the full panel anyway could imply that the court wanted to minimize political controversy.”

Indeed, at the time of the ruling, there was rumors around the court that the justices were concerned that upsetting President Park Geun-hye and the political establishment might cause problems for pending legislation about creating a special appeals court to reduce the Supreme Court’s workload.

The Supreme Court has made some rulings under Chief Justice Yang Sung-tae that protect civil rights and the rights of minorities. The court has received high marks for its approval of a limit on the hours of operations at large retail outlets, its recognition that a soldier who committed suicide was still a “person of national merit” and its concurrence that rape can occur between married individuals.

But this does not live up to the court’s record during the tenure of Lee Yong-hun. In fact, under Lee, 16 (16.8%) of the 95 cases reviewed by the full panel of the Supreme Court are regarded as having protected civil rights and the rights of vulnerable members of society.

In contrast, just seven (8.6%) of the 81 cases reviewed by the full panel of the Supreme Court under Yang Sung-tae – who has about one and a half years left in office – are thought to have expanded civil rights and the rights of minorities.

“Under Chief Justice Yang Sung-tae, the Supreme Court has shown a tendency of narrowly interpreting the purpose of the law in areas where it ought to be making progressive decisions on behalf of the vulnerable. There is a connection here with the tendencies of Supreme Court justices who are appointed by a conservative government,” said Lee Jae-seung, professor at the law school at Konkuk University.

By Kim Ji-hoon and Seo Young-ji, staff reporters

Please direct questions or comments to [english@hani.co.kr]