The Supreme Court will have to restart the time-consuming process of filling a vacancy sooner or later, with only three of the four justice nominees approved by the National Assembly earlier this month. The other nominee, a former senior prosecutor, had withdrawn from nomination under mounting pressure over suspicions of lawbreaking and ethical lapses.
Prior to starting the process anew, however, the court will have to make a very important decision ― one regarding whether to continue to honor or break with the customary practice of seating a former prosecutor on its bench. Opinion in the legal profession is divided over the customary selection of a prosecutor by the minister of justice.
At the heart of the issue are conflicting claims. Critics demand that the practice be abandoned because it started as a device for an authoritarian president to exert his influence on the court. But advocates, mostly prosecutors and prosecutor-turned lawyers, claim that the practice should continue for the sake of promoting diversity in the bench.
Key questions that need to be addressed in making a decision on the issue include whether or not a person with a career as a prosecutor is qualified to sit on the bench, and if so, whether or not it is necessary to keep at least one among the 13 justices at all times. Another important question is about who should pick the nominee: the justice minister or the chief justice.
Reserving one seat on the bench for the prosecution started in 1964, three years after Army Gen. Park Chung-hee took power in a coup. The then justice minister said he appealed to President Park to seat one former prosecutor on the bench in the belief that the Supreme Court should not be a “hall for judges only but one for all legal profession.”
One more prosecutor-turned justice was added in 1981 when the military-backed dictatorship was led by Chun Doo-hwan. The number was cut to one in 1988, soon after the Constitution was revised to restore democracy.
Now few would claim the executive branch is still attempting to exercise its influence on the judiciary through the prosecutor-turned justice. Nonetheless, critics, many of whom believe the prosecution is biased in favor of the incumbent administration, maintain that the court must discontinue the practice immediately.
Prosecutors, prosecutor-turned lawyers and other advocates demand the court continue to honor the customary practice, claiming that the presence of a prosecutor-turned justice on the bench will protect the court from the ill effects of what they call inbreeding. But they are ill-advised when they insist that it is needed for the court’s diversity. More convincing in that regard is an argument that more female justices should be selected, with only one woman currently serving as a justice.
Equally misplaced is a claim that the legal expertise provided by a prosecutor-turned justice is of little use for adjudication by the court. Though some insist that prosecution is one thing and adjudication is quite another, a former justice is quoted as saying that prosecutor-turned justices often identify crucial elements in criminal cases that may have eluded the scrutiny of judge-turned justices.
As the former justice says, it may be necessary for the court to have one prosecutor-turned justice. Even so, it is necessary to change the current process. Instead of automatically putting up as a justice nominee the one recommended by the justice minister, the court should be placed in the driver’s seat for the selection of a nominee ― not just from incumbent prosecutors but from prosecutor-turned lawyers as well.
The proposed change in the selection process would help forestall the kind of a mistake that the justice minister made when he recommended the former chief of the Incheon district prosecutors’ office as a nominee. The district prosecutor was suspected of dodging taxes and breaching the law by registering as a resident of a certain district without actually having moved there.
No one suspected of an ethical lapse or an infraction should be eligible for nomination. But the justice minister ignored integrity in selecting a nominee. He deserved the humiliation he must have felt when his selection was rejected.
