Chief justice refuses oath, defends nomination power amid unprecedented parliamentary audit standoff

Chief Justice Jo Hee-de made an unprecedented appearance before lawmakers Tuesday, defending his exclusive authority to nominate Supreme Court justices while refusing to testify under oath on grounds of judicial independence.

The appearance came amid a standoff between Jo and the presidential office, which has asked him to withdraw his nominee to succeed former Supreme Court Justice Rho Tae-ak and nominate someone else, a request Jo has rejected.

“Under the Constitution, each of the three branches has its own exclusive authority, so neither the National Assembly nor the president can interfere in the chief justice’s nomination,” Jo said during a National Assembly audit by the Legislation and Judiciary Committee. He refused to take the witness oath, citing judicial independence.

When Democratic Party Rep. Kim Gi-pyo urged Jo to explain his position himself, Jo said, “Since everyone is curious, I have no choice but to explain why I am refusing to take the oath and testify.”

Jo then took out a prepared document and laid out his reasons for refusing to testify at the audit and rejecting the presidential office’s request to nominate a different candidate to succeed former Supreme Court Justice Rho.

Jo first read Article 104, Paragraph 2 of the Constitution, which states that Supreme Court justices are appointed by the president on the recommendation of the chief justice and with the consent of the National Assembly.

“The three branches each have their own exclusive constitutional authority [the chief justice’s power to nominate, the National Assembly’s power to consent and the president’s power to appoint],” Jo said.

“There is no basis for the National Assembly to conduct an audit or investigation, or demand testimony [concerning the chief justice’s power to nominate],” Jo continued. “Just as the chief justice cannot interfere at all in the National Assembly’s consent process or the president’s appointment process, the National Assembly and the president cannot interfere at all in the chief justice’s nomination.”

Jo also said it would be unconstitutional for the National Assembly to compel the chief justice to testify about a Supreme Court justice nomination.

“For the Legislation and Judiciary Committee, which is part of the National Assembly responsible for the consent process, to interfere in the chief justice’s exercise of the nomination power without any constitutional basis violates the allocation of authority among constitutional institutions explicitly prescribed by the Constitution and the independence of the judiciary, and is therefore unconstitutional,” the chief justice said.

Jo also said there is no constitutional basis for any other institution to be involved in the chief justice’s nomination process.

“Chief justices have consulted with the presidential office in the past not because the Constitution requires it, but because they voluntarily cooperated to facilitate swift and smooth appointments,” Jo said. “There is no constitutional problem even if such consultations do not take place.”

He added that the Constitution places no restrictions on submitting a nomination in writing.

Jo further argued that a chief justice may nominate someone who was not recommended by the Supreme Court justice candidate recommendation committee.

“The National Assembly had no constitutional authority to create the recommendation committee system, but the system was established with the consent of the chief justice at the time,” Jo said. “That is why the law merely states that the chief justice shall respect the committee’s recommendations.”

The chief justice said the next step should be for the presidential office to send a motion seeking consent to the appointment to the National Assembly.

“The chief justice can be considered to have completed all of his constitutional duties and authority once the nomination is made,” Jo said. “The Constitution provides no procedure or mechanism for the National Assembly to question the chief justice over the nomination, so I have no choice but to refuse to take the oath or testify.”

It was the first time under Korea’s current constitutional system, established in 1987, that a chief justice responded to lawmakers’ questions during a parliamentary audit.

By convention, the chief justice leaves the audit after delivering opening remarks in deference to the separation of powers. The Democratic Party departed from that convention by calling Jo as a witness for the second consecutive year.

Jo had initially submitted a written notice explaining why he would not appear as a witness. But Legislation and Judiciary Committee Chair Seo Young-kyo did not allow him to leave Tuesday, telling him only, “Please remain seated. Thank you for your remarks.” Jo stayed until the committee recessed at 12:40 p.m.

The opposition protested the move.

“This amounts to arrest and detention,” People Power Party Rep. Park Hyeung-soo said. “Isn’t the reason a Supreme Court justice has not been appointed that the presidential office demanded a new nomination? If so, President Lee Jae Myung should appear at the audit.”

Although Jo had submitted a notice explaining his refusal to appear as a witness, he answered lawmakers' questions directly after Seo declined to let him leave. At one point, Jo asked whether the relevant constitutional provision could be displayed on a screen.

In his opening remarks, Jo also briefly explained why he had rejected the presidential office’s request for a new nomination, an account he had previously provided in a written statement.

“We continued consultations but ultimately nominated a Supreme Court justice candidate without reaching an agreement,” Jo said. “I received an official document from the presidential office requesting that I nominate another candidate, but it did not clearly state the specific reasons or constitutional basis for asking me not to proceed with the appointment of the candidate already nominated and instead nominate someone else.”

Jo refused to take the witness oath, citing judicial independence.

When Seo asked whether he was refusing to take the oath, the chief justice said, “As I stated at the outset, I cannot take the oath or testify.”

Ruling party lawmakers continued to question him, however, and Jo directly answered some questions concerning the use of official expenses and the Dec. 3 martial law declaration.

BY CHOI SEO-IN [[email protected]]