When Justice Becomes Complicit: The Quiet Crisis in South Korea’s Judiciary
By BK Park, U.S. editor based in South Korea
In a democracy, the judiciary is meant to be the final bastion—a firewall against tyranny, a check on the excesses of power. But what happens when that very bastion crumbles from within? South Korea may be approaching that threshold, as the trial of former President Yoon Suk-yeol reveals a deepening rupture between the judiciary’s mandate and its practice.
The decisions of Judge Ji Gui-yeon, presiding over Yoon’s trial for alleged sedition, have triggered alarm not only among legal scholars in South Korea but also among international observers of democratic jurisprudence. His rulings—including converting Yoon’s detention time into hours instead of days to justify his release, disallowing media coverage of court proceedings, and ordering a closed trial—mark a departure from the principles that underpin democratic justice: transparency, equality before the law, and the independence of the judiciary.
A Violation of the Open Trial Principle
In Western legal tradition, open trials are not a convenience but a constitutional imperative. From the 1689 English Bill of Rights to the Sixth Amendment of the U.S. Constitution and Article 6 of the European Convention on Human Rights, the idea is simple: justice must not only be done but be seen to be done. This was the crux of the 1924 British ruling in R. v. Sussex Justices, ex parte McCarthy—a precedent that continues to reverberate through global courts.
South Korea’s own constitutional and legal frameworks, as emphasized by legal scholars Kim Joo-seok, Seo Yong-seong, and Lee Dan-bi in a 2023 Judicial Policy Research Institute paper, underscore the democratic value of open trials. Although countries like Germany and France lack explicit constitutional clauses mandating court transparency, their judicial traditions have evolved to uphold open trials as a constitutional expectation, crucial for public trust and democratic oversight.
In the current trial of Yoon, Judge Ji’s decision to bar media and public access, despite the gravity of the charges, stands in direct opposition to these international norms and Korea’s own legal principles. The court’s silence, in this case, is not neutral—it is complicit.
The Weaponization of Procedure
The most insidious threats to democracy are often procedural. If Judge Ji declares Yoon not guilty, and the prosecution—led by Prosecutor Shim Woo-jung—chooses not to appeal, the principle of double jeopardy (enshrined in the Fifth Amendment of the U.S. Constitution) would make any future trial on the same charges impossible. In theory, such protections guard against state abuse; in practice, when misapplied or politically manipulated, they shield impunity.
As Thomas Carothers of the Carnegie Endowment for International Peace warned, “When courts become the shield for political impunity, the very idea of justice collapses.”
The Yoon trial risks becoming a textbook example of what political scientists now call a “judicial coup”—when a court, cloaked in procedural legitimacy, subverts justice from within. While the United States has mechanisms like impeachment and federal prosecution for judges who abuse their authority, and Germany enforces strict criminal penalties for legal distortion under §339 of its Penal Code, South Korea has yet to hold any judge accountable for its historical miscarriages of justice—including fabricated espionage trials and the infamous People’s Revolutionary Party case.
The Slippery Slope of Judicial Collusion
Perhaps more common, and far more insidious, is judicial collusion. This occurs when judges, while maintaining a veneer of neutrality, enable the political system’s worst excesses. When courts transform illegal acts into legal outcomes through silence, delay, or willful misinterpretation, the judiciary no longer serves the people—it serves power.
Judge Ji’s procedural decisions reflect not merely bad judgment but an alarming alignment with executive interests. Her rulings contradict established norms and raise a critical question: Is this judicial neutrality or judicial abdication?
As political theorist Karl Loewenstein noted, authoritarian regimes turn courts into instruments of state justification, whereas democracies rely on courts to constrain executive overreach. In United States v. Nixon (1974), the U.S. Supreme Court compelled a sitting president to release evidence against himself—proving that no one, not even a president, is above the law.
South Korea must ask whether it is prepared to meet such a standard—or whether it will settle for silence disguised as decorum.
A Judiciary on the Edge
Legal experts in South Korea are sounding the alarm. Attorney Park Pan-gyu warns of a “pre-arranged trial” between Judge Ji, Prosecutor Shim, and the former president. Lawyer Shin In-gyu has criticized Ji’s deviation from legal norms as “a second strike,” while lawyer Kim Kyung-ho declares the closed proceedings a blatant constitutional violation. Former journalist Song Yo-hoon describes Yoon’s release as “a legal jailbreak,” carried out with bureaucratic finesse.
All agree: the judge’s decisions undermine public trust in the courts—a core pillar of any democratic system.
As Levitsky and Ziblatt famously wrote in How Democracies Die, “The death of democracy is not a coup, but the slow erosion of institutions.” A judiciary that masks complicity with silence is one such erosion in action.
Law Must Speak
The South Korean Constitution contains all the necessary tools—impeachment, discipline, criminal sanctions—for judicial accountability. But laws unused are laws undone. If a judiciary is unwilling to hold itself accountable, it becomes indistinguishable from the regime it is meant to check.
Now is the time for Korea to decide whether its judiciary will remain the last refuge of justice—or become its final betrayal. Law must speak. When it does not, it ceases to be law at all.
References available upon request.
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