Who Should Protect Judicial Independence?

The separation of powers is a fundamental value taught from elementary school social studies classes. It means the legislative, executive, and judicial branches check and balance each other. However, this principle is constantly tested when thrust into the heart of real politics—especially during times of crisis.

The judicial reform bill recently pushed by the Democratic Party of Korea has once again invoked this age-old principle. While the Democrats cite "restoring fairness" as justification for establishing a dedicated court division for insurrection cases, the problem lies in unprecedentedly expanding the possibility of National Assembly intervention in judicial composition and trial structures.

The judiciary did not remain silent. Chief judges and judicial representatives from courts across the nation discussed the reform bill and issued a message citing "trial independence, judges' professional independence, and concerns over judicial infringement." Though worded differently, the point was the same: "Please respect the domain of the judiciary." Whether that voice managed to stop the speeding locomotive of politics, however, remains questionable.

Subsequently, the Supreme Court decided to establish a "dedicated division for nationally significant cases" through internal rules rather than parliamentary legislation. Cases would still be randomly assigned according to existing principles, but the division handling such cases would be designated as the dedicated division. It was a choice to accept the need for a dedicated division while keeping design and operation in the judiciary's hands.

This is where the contradiction of the separation of powers emerges. Each branch claims its own legitimacy, but in actual situations, it easily devolves into a power struggle over who is more right. The National Assembly asserts its "representation of the people," while the judiciary asserts its "independence granted by the Constitution." Neither is wrong. But the moment this debate repeats itself, the separation of powers degenerates from a principle of balance into a pretext for collision.

Judicial independence is not a value the judiciary can protect alone. No matter how many statements judges issue or meetings they hold, that independence is easily shaken the moment authority to design trial structures passes outside the judiciary. That said, the National Assembly reshaping the judicial domain in the name of the majority cannot be the right answer either. The separation of powers as designed by the Constitution does not presume the victory of any single branch.

What is needed now is neither stronger rhetoric nor more meetings. It is a minimum consensus on what constitutes the judiciary's inherent domain and where legitimate legislative oversight ends. Systems pushed through while bypassing this may satisfy immediate political demands, but ultimately return as costs to judicial credibility. Systems can be tools for restoring trust, but systems without consensus may instead erode it.

The entity protecting judicial independence is not the courts alone. It is the National Assembly, the executive branch, and ultimately, the state. The separation of powers is not a weapon for defeating opponents but a minimum order that must be protected together.

Now is the time to ask this question again: Who should protect judicial independence?