[Editorial] At a moment that belongs to the voters, the judiciary must not limit the public’s choices

Chief Justice Jo Hee-de and the other justices are seen in the Supreme Court of Korea’s main courtroom in Seoul’s Seocho District on Thursday afternoon as they prepare to present a decision on a case involving alleged violation of the Public Official Election Act by Democratic Party presidential nominee Lee Jae-myung. (pool photo)

South Korea’s Supreme Court has overturned Democratic presidential nominee Lee Jae-myung’s acquittal on charges of spreading false information according to electoral law. Lee now faces a retrial at the Seoul High Court.

Chaos is poised to erupt as the trial puts the eligibility of the upcoming presidential election’s frontrunner in jeopardy. This is an example of judicial overreach in the democratic process of deciding who is entrusted with power. Amid a national crisis sparked by an insurrection attempt, we cannot have a situation where an election in which the sovereign public decides the nation’s future ends up being swayed by the unelected members of the judiciary.

The Supreme Court’s full bench, presided over by Chief Justice Jo Hee-de, declared Thursday that Lee’s comments regarding a golf outing with an official related to the Daejang neighborhood development scandal and alleged threats he received from the Ministry of Land, Infrastructure and Transport (MOLIT) to force him to agree to rezoning in Seongnam constituted false statements. With this, it overturned the ruling of a lower court, which found that the comments were “open to interpretation” or were “expressions of an opinion.”

Ten of the 12 justices stood with the ruling, while Justices Lee Heung-gu and Oh Kyeong-mi dissented. In their dissenting opinion, they stated, “Allowing a broader interpretation of the law stipulating the criminality of the dissemination of false information under election law is a regressive act. By brandishing a sword against freedom of political expression and public debate, this will cause the history of democracy’s development to regress.”

As the Supreme Court stated, the reason that the Public Official Election Act restricts the language of candidates is that it “may compromise the electorate’s accurate judgment of a candidate and their qualifications for office.” In other words, the judgment is made to ensure that the voting public can make accurate judgments, while the judiciary effectively acts on behalf of the public in determining whether certain statements or comments are punishable by law.

Just as the first two courts reached vastly different conclusions, the Supreme Court also saw a majority-minority split. In a case like this, the voting public’s judgment should be prioritized above all else.

The public watched the first two trials take place, and what they believe is demonstrated by their evaluation of Lee as a politician. The judiciary must also be cautious in examining whether the expanded scope of the definition of disseminating falsehoods could be exploited by prosecutors to crack down on the opposition through selective indictments.

Not only that, but the snap presidential election is a mere month away. The complex political machinery needed to elect a new leader is already turning. Moreover, the upcoming election is being held during a crisis, which demands that we overcome the situation created by the past insurrection attempt and stabilize the nation as soon as possible.

The fact that the unelected members of the judiciary have attempted to intervene and influence the process runs counter to the principles of representative democracy. The judiciary should exercise restraint and show respect for the public’s timeline.

The unusual haste shown by the Supreme Court — reaching a decision to hear the appeal in a mere nine days — has made many suspect political motives. Whether the court had sufficient time for the hearings in the midst of this rush is anyone’s guess. There are likely many members of the public who question whether the Supreme Court’s ruling was made fairly and without ulterior motives.

The court’s aim may have been to quickly reach a resolution in the election law violation case, but the result only compounds the chaos. Faith in the judiciary’s commitment to upholding the constitution and democracy is being tested — especially after the public witnessed the bizarre logic used by a court to justify releasing former President Yoon Suk-yeol when he was arrested for being the ringleader of an attempted insurrection, as well as Chief Justice Jo Hee-de’s silence over the insurrection attempt.

With its foolhardy decision, the Supreme Court is now in danger of facing a total collapse of trust from the public. Without the public’s trust, the judiciary loses its very grounds for existing.

As it proceeds with Lee’s trial, the Seoul High Court will need to ponder the proper role of the judiciary.

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