Supreme Court nominee says presidents must face same trial standards as ordinary citizens

Supreme Court justice nominee Kim Sung-su said Friday that presidents and prominent politicians must stand trial under the same constitutional and legal procedures that apply to ordinary citizens, while stopping short of taking a clear position on whether criminal proceedings begun before a president takes office should continue during the term.

According to Yonhap, Kim submitted written responses to People Power Party lawmaker Ju Jin-woo of the National Assembly's special confirmation hearing committee for Supreme Court justices. Asked whether presidents and prominent politicians should be subject to the same trial procedures and standards as ordinary citizens, Kim said, "Even if a president or a prominent politician is a defendant, they must receive a fair trial under the same constitutional and legal procedures and standards that apply to ordinary citizens."

He went on to say, "In the case of the president, there are separate provisions under the Constitution — such as Article 84 — that account for the special nature of the president's constitutional status and duties, and in such cases the matter must be decided in accordance with what the Constitution prescribes."

On the question of whether criminal trials that began before a president's inauguration must continue during the term, Kim was cautious. He said the issue "requires legal interpretation of the meaning and scope of 'indictment' under Article 84 of the Constitution," adding that because it is a point of contention in cases currently before the courts, "it is a judicial matter to be decided by the presiding court through constitutional interpretation."

Kim gave the same response when asked whether legislation suspending existing criminal trials during a presidential term would be constitutionally permissible, and whether resuming a suspended trial immediately upon a president leaving office should be the default rule.

"Because this may relate to cases currently before the courts, it would not be appropriate for me as a Supreme Court justice nominee to express a specific opinion," he said, declining to answer directly.

He was, however, unequivocal in opposing any adjustment of trial schedules or sentencing timing based on political or social fallout. "In cases of great public interest, the timing of hearings and sentencing is determined by the substance of the case and the progress of proceedings — it is not something to be moved up or delayed based on political or social repercussions," he said.

Kim also said legislation enacted or amended with the direct purpose of influencing the outcome of an ongoing trial involving a specific individual would require constitutional scrutiny.

"Legislative power is a constitutionally granted authority of the National Assembly and must be broadly respected," he said, "but if legislation is enacted with the direct purpose of influencing the outcome of an ongoing trial involving a specific individual, it raises issues that require constitutional review in light of the principle of separation of powers, judicial authority, and the independence of the judiciary."

Asked whether a president could refuse to submit a Supreme Court justice appointment consent motion to the National Assembly after the chief justice has recommended a nominee, Kim said, "The Constitution sets out the appointment procedure for Supreme Court justices, but contains no explicit provision on whether the president may refuse to submit a consent motion in response to the chief justice's recommendation — or, if so, on what grounds and through what procedure."

On whether a president could demand that the chief justice re-nominate a Supreme Court justice candidate, he said, "Whether a procedure not explicitly provided for is constitutionally permissible is a matter to be resolved through interpretation, in light of the nature and interrelationship of the powers the Constitution grants to each institution."

Regarding the need for prior consultation between the president and the chief justice before a justice is recommended, Kim said, "The Constitution provides only for the procedures of recommendation and appointment, and does not require prior consultation," while acknowledging that "there has been a practice of coordinating views among constitutional bodies during the appointment process, which can be understood as one form of cooperation to facilitate the smooth conduct of the appointment procedure."

On a proposal to expand the Supreme Court bench from the current 14 justices to 26, Kim expressed sympathy with the intent but cautioned against the risk of weakening lower courts.

"I respect the intent to ease the excessive caseload burden and more fully guarantee the people's right to a trial," he said, "but measures to strengthen fact-finding courts must also be considered together, so that a reduction in the number of fact-finding judges does not weaken the adjudicative capacity of lower courts."

He added that for an expanded bench to translate into genuine improvements in judicial services, "the composition of benches and hearing procedures commensurate with the increased number of justices must be established, and the necessary personnel — including law clerks — must also be expanded accordingly."

Kim was also measured in addressing concerns that a system allowing constitutional complaints against court rulings could in effect create a four-tier judicial system.

"If the constitutional complaint process were to generally re-examine the appropriateness of a court's factual findings or legal interpretation, the criticism that it would in effect operate as a four-tier system could arise," he said, adding that "relevant procedures and the system need to be reformed so that the fundamental rights of the people are effectively guaranteed while the finality of judgments and legal stability are kept in balance."

On the proposed creation of a crime of judicial distortion, Kim said he sympathized with the legislative intent but expressed concern that it could have a chilling effect on judicial independence.

"A judge's fact-finding and interpretation and application of law in specific cases is the essential domain of adjudication, and constitutional judicial independence must be sufficiently guaranteed," he said. "Care must be taken that if the crime of judicial distortion is applied broadly to legitimate legal interpretation or judicial decisions, it could deter judges from ruling with conviction."

On abolishing prosecutors' investigative powers, Kim said it was "a matter for the National Assembly to decide as a legislative policy question," but stressed that "careful preparation is needed to ensure there are no gaps in the speed of case handling, accountability among investigative agencies, and the securing of sufficient evidence for victim relief and the maintenance of prosecution."