[The Editors' Verdict] The Crisis of Separation of Powers and the Principle of Respect

Published 07 Jan.2021 12:03(KST)

Over the past year, the thing that made our people the most depressed was the novel coronavirus infection (COVID-19). COVID-19 demanded a fundamental change in the way we live and completely transformed the lives of the people.

Next in line to make us depressed was the conflict between the Minister of Justice and the Prosecutor General, and the disappearance of politics due to the 180-seat supermajority ruling party's rush. At least the film "Parasite" winning four Academy Awards including Best Director and Best Picture, and the group BTS entering the US Billboard main singles chart provided some consolation.

Politically speaking, last year's crisis can be described as a crisis of the separation of powers. The executive branch is swayed by politics, politics depends on the judiciary, and the judiciary fails to gain trust, creating a vicious cycle. The legislature and the president seem to lead policy while the executive branch appears to be nothing more than a sidekick.

Politics relentlessly files criminal charges against opponents' faults or misconduct, while most politically critical issues are left to the prosecution and courts for judgment. However, their judgments are not respected either. Unfavorable rulings are invariably criticized. The separation of powers, which aims to divide power among various institutions to achieve checks and balances and ultimately guarantee the fundamental rights of the people, is becoming meaningless.

The independence of the executive branch from politics began as a reaction against the patronage system in the 19th century, where one party in power occupied all public offices. Woodrow Wilson (1856?1924), the 28th President of the United States and considered the founder of public administration, viewed efficiency as the most important value and believed that the stable status of a bureaucratic organization with guaranteed tenure and regular salaries would encourage public officials to pursue the common good of society rather than their own selfish interests.

Meanwhile, the role of the judiciary is to protect individual rights from illegal acts by politics and administration. The foundation justifying such judicial review lies in the independence of judges, whose tenure and salary maintenance aim to free them from political pressure by the majority.

The reason why the executive and judiciary, expected to perform their duties independently and objectively, fail to do so is that the legislature led by the majority party and the powerful presidential office interfere excessively in the executive and judiciary. Especially in presidential systems, unlike parliamentary systems, when the president and the ruling party exert strong pressure simultaneously, the position of the executive and judiciary becomes even narrower.

Of course, while the executive branch originally pursues public interest as its ideology, it also shows tendencies to seek organizational survival and expansion. The judiciary also sometimes shows political and ideological tendencies and, on the other hand, fails to even form a minimum consensus with the public.

In this regard, it is also acknowledged that democratic control from the legislature and president, who represent the people as elected powers, is necessary.

What is needed to overcome this crisis of separation of powers is the principle of respect. The executive branch has expertise in solving social problems; the legislature and president have political responsibility to the people; and the judiciary has expertise in interpreting and applying the law to correct illegal or unjust acts by the legislature and executive and to protect individual rights. These roles must be mutually recognized and respected.

In our case, it is even more depressing that the end of COVID-19 is not expected until well into the second half of this year. At least in terms of power, we hope to see cooperation and respect among them to show hope to the people.