Judiciary pendulum set for conservative swing

The Aug. 18 announcement of the nominee for new Supreme Court chief justice came as a surprise to most reporters and judiciary members, who had been closely watching the selection process for the past weeks.

Former Justice Yang Sung-tae was not considered to be on the shortlist, as he went on a trip to Yosemite National Park in the U.S. early this month after rejecting a request from Cheong Wa Dae to submit a self-verification statement for screening.

After the announcement, however, aides to President Lee Myung-bak said Lee had long kept Yang in his mind as most suitable candidate for the top judiciary post. A former senior government official close to Lee recalled that the president had made no secret of his intention to nominate Yang as next chief justice during a meeting last December.

The official, speaking on condition of anonymity, quoted Lee as saying the nation needs a judge like Yang who hands down “clear rulings.” At the time, Yang, then a Supreme Court justice, upheld a lower court’s verdict of jail time for a violent protest against an urban redevelopment project. He said the police crackdown on the protest, in which five squatters were killed, was due execution of official duties.

Lee was known to have asked his aides to continue to persuade the 63-year-old former justice to change his mind. Yang finally accepted the offer, returning home a day before his nomination was announced.

“Candidate Yang has maintained consistency in his rulings throughout his judicial career spanning 36 years,” said a presidential spokesman in a statement announcing Lee’s decision to nominate Yang. “He is a stable figure who can preserve the core value of our society, free democracy, and yet a reform-minded person who can change the judicial branch in accordance with the demands of time.”

Observers see such statements as reflecting the president’s expectations that Yang will shift the top court, which has shown liberal tendencies under incumbent Chief Justice Lee Yong-hoon, to the right. If approved by the National Assembly next week, they note, Yang’s nomination will go down as one of the most crucial decisions by President Lee, with its impact on Korean society resounding well beyond his term in office, which ends in February 2013. Yang will head the top court through September 2017.

Behind Lee’s adherence to Yang was apparently the former justice’s conservative tendencies during his career on the bench. Yang, who left the judiciary after serving out a six-year term as Supreme Court justice in February, has a reputation for principled rulings, especially on cases of pro-North Korean activities and illegal demonstrations.

His record puts him on the conservative side in the 14-member Supreme Court led by Chief Justice Lee, who is set to retire in late September. Since being appointed by President Roh Moo-hyun in 2005, Lee had pushed for measures to reform the judiciary as the most liberal chief justice in the nation’s history. While being credited for strengthening defendants’ rights and judges’ influence, he has been criticized for leading the judiciary toward the left, causing friction with the prosecution and conservative forces.

Conservative credits

Yang had a difficult time during the Roh administration, which attempted to shake up the hierarchical system of the court as part of its reform drive. He stepped down as deputy head of the Office of Court Administration in 2003 in an argument over the judiciary reform. A year later when Roh named a 48-year-old female judge as Supreme Court justice over Yang and other senior judges, he considered leaving the judicial branch but was persuaded by his colleagues to change his mind.

His ability and reputation were such that his conservative stance did not hold him from finally sitting on the Supreme Court bench in 2005. “I do not think overhauling the existing order and introducing a completely new system is a reform,” Yang said during a parliamentary confirmation hearing at the time.

President Lee apparently longed for the moment to appoint a conservative judge to succeed the incumbent chief justice, whose liberal tendency led some judges to make rulings that embarrassed his administration and the ruling Grand National Party.

A court decision to acquit TV producers accused of exaggerating the risk of mad cow disease infuriated the Lee government, which had been cornered by massive protests against U.S. beef imports after their program was aired in 2008. Another court ruling that found not guilty an opposition lawmaker, who had become violent while resisting parliamentary guards dispersing a sit-in of party officials, drew criticism from the ruling party.

“We should be cautioned against the rising populism in the judiciary,” Lee said in August 2008 during an event to commemorate the 60th anniversary of the establishment of the country’s justice system.

What adds more importance to President Lee’s choice is that the chief justice is authorized to recommend candidates for justices of the top court. Six of the 13 justices are scheduled to complete their term ― two by November and the other four by July next year ― and Lee will name their successors at the recommendation of Yang. Lee apparently hopes that the additional appointments will consolidate the conservative presence in the top court. All the justices set to retire in the coming years were appointed by Roh. Some of them including Park Si-hwan and Kim Ji-hyung have been known for their liberal views advocating rights for women, labor activists and other non-mainstream groups.

The chief justice is also responsible for recommending a third of justices at the nine-member Constitutional Court as well as exercising exclusive authority on the transfer and promotion of about 2,500 judges across the country.

Tougher hearings

Such powers to be given to Yang have raised concerns that the Supreme Court will go far beyond a balancing point and start to lean right, with its benches being occupied by only conservative judges from elitist backgrounds.

“We have yet to see but I have concerns the Supreme Court to be led by Yang will be filled by bureaucratic judges and may be distanced from the people,” said Chung Mi-hwa, a member of the Lawyers for a Democratic Society, a group of liberal lawyers. “I have to say, my expectation is not so high that the judiciary under Yang’s leadership will be positive and flexible in coping with rapid changes in society.”

A professor at a law school in Seoul, who requested anonymity, also worried that the diversification of the top court, which had made some progress under the Roh administration, will be diluted. Roh appointed two female judges and a judge who graduated from a provincial university as Supreme Court justices for the first time in the nation’s judicial history.

When asked by reporters to comment on such concerns after his meeting with Chief Justice Lee on Aug. 19, Yang simply smiled and said nothing.

The high stakes at Yang’s appointment as chief justice has led to speculations that Yang will face a tougher parliamentary confirmation hearing than the two previous ones he had gone through as candidate for Supreme Court justice in 2005 and head of the National Election Commission in 2009. His confirmation hearing is set for Tuesday and Wednesday next week. A parliamentary vote is to take place Friday, with support from a majority of sitting lawmakers needed to approve his appointment.

While the ruling GNP sees no problem with his qualifications, the opposition groups pledge to treat him more stringently this time.

“We will thoroughly scrutinize whether Yang has the ability and qualifications to defend the independence of the judicial branch and protect basic rights for people,” said Rep. Lee Yong-sup, a spokesman for the main opposition Democratic Party.

An official of the splinter Democratic Labor Party said the balanced development of society cannot be guaranteed if a conservative figure like Yang takes the top judicial post.

Some lawyers as well as his associates, however, said such concerns over the direction in which Yang will lead the top court may prove exaggerated, describing him as a “compassionate and rational conservative” with a sense of balance.

“I think it is a groundless concern that the Supreme Court will be tilted toward the right,” said Jeong June-guil, a lawyer who serves as a spokesperson for the Korean Bar Association. “Yang may be well aware of the consequences his biased attitude would bring about.”

He expressed confidence Yang will seek to bring necessary changes to the judiciary in a “stable and rational manner.”

While he has been firm in rulings on pro-North Korean entities and illegal demonstrators, Yang has shown some flexibility on social issues like the abolition of capital punishment, abortion and the family system. At the 2005 hearing, he said he was sympathetic to repealing capital punishment and allowing abortion. When he headed a district court in Seoul in 2001, he referred the constitutionality of the traditional patriarchal family system to the judgment by the Constitutional Court in a step toward enhancing women’s rights.

‘Free spirit’

In an interview before his retirement as Supreme Court justice in February, Yang said he had been often said to be liberal in the past. He has been nicknamed by some associates as a “free spirit.” Yang, an enthusiastic climber, has said he wants to travel the world on a Harley Davidson. In high school, he enjoyed listening to and singing pop songs, with his friends remembering he had memorized the lyrics of more than 1,000 songs.

After stepping down as Supreme Court justice, Yang told his associates he wanted to do what he really liked for the coming 10 years and had no wish to become the chief justice.

During his meeting with Chief Justice Lee after his nomination, Yang was quoted as saying that after much anguish, he decided to follow a “path of hardship” shouldering the heavy burden. Many observers say Yang need to keep the attitude throughout his tenure to ensure the balance of the Supreme Court and keep the judiciary in touch with social changes and public sentiment.

Aside from settling concerns over possible ideological leaning, Yang also has to tackle a raft of judicial reform measures such as the increase in the number of Supreme Court justices, balancing out law school graduates who begin to enter legal circles next year with existing legal professionals and the introduction of a system designed to fill all judicial benches with those that have had experience as lawyers or prosecutors. He also faces the task of easing the confrontation with the prosecution, which has been exacerbated by his predecessor’s emphasis on evidence and testimonies present in trial rather than documents submitted by prosecutors or the defense.

Under the incumbent chief justice, the rate of acquittals and the number of arrest warrants rejected by judges have been continuously increasing, leading some prosecutors to say, “We are having the hardest time.”

By Kim Kyung-ho (khkim@heraldcorp.com)