The hierarchy of power

The Constitution states that legislative authority rests with the Assembly, judicial authority with the courts, and procedural rules with the Supreme Court.

Choi Hyeon-chul

The author is a national news editor at the JoongAng Ilbo.

Korea’s democracy was born of resistance against authoritarian power. Leaders were elected, but when they violated principles and abused their mandate, citizens rose in defiance and the Democratic Party stood beside them. The party platform begins with the words, “The Democratic Party inherits the spirit of self-determination of the Provisional Government of Korea and the democratic traditions of the April 19 Revolution, the Busan-Masan Uprising, the May 18 Democratic Uprising, the June Democratic Struggle, and the Candlelight Revolution.”

Yet at some point, the party began to emphasize the supremacy of elected power. That shift seems to have taken root after the 21st general election, when the party and its satellite affiliate won nearly 180 seats. Following the collapse of former president Yoon Suk Yeol, whose attempt to impose martial law destroyed his presidency, elected power has been elevated within the party to something approaching omnipotence.

President Lee Jae Myung speaks at a press conference to mark 100 days in office at the Blue House’s Yeongbingwan state guest house in central Seoul on Sept. 11. [JOINT PRESS CORPS]

On Thursday, President Lee Jae Myung reinforced this view at his 100-day press conference, declaring, “There is a clear hierarchy of power.” His comment was linked to the debate over a special tribunal for insurrection. The Democratic Party is pushing legislation to establish courts dedicated to handling insurrection cases, with judges nominated by a committee that includes outside experts. The proposal originally considered including civilians as judges, but the plan was scaled back to recommending sitting judges only.

The move has triggered criticism that it violates the separation of powers and the Constitution. Even within the Democratic Party, Rep. Park Hee-seung warned, “How is this different from Yoon Suk Yeol declaring martial law and sending soldiers into the streets?” The suggestion that the party is punishing insurrection by acting in a similar spirit has been particularly cutting.

President Lee dismissed such concerns, saying, “Why would that be unconstitutional?” He cited constitutional provisions stating that while judges are appointed by the chief justice of the Supreme Court, the organization of courts is determined by law. In his view, establishing special tribunals and a mechanism to select their judges through legislation would not contradict constitutional limits.

Lee outlined a hierarchy: popular sovereignty first, then directly elected power, and finally indirectly elected power. His claim that “everything depends on the will of the people” effectively equates sovereignty with electoral mandate. But this reasoning rests on a serious flaw — the assumption that popular sovereignty equals elected authority.

The essence of a democratic republic is that sovereignty belongs to the people, not monarchs or privileged classes. To realize that principle, citizens elect legislators, who in turn create laws that delegate specific authority within defined limits. But laws must themselves respect higher principles, and those boundaries are set by the Constitution. Any statute that breaches those limits is invalid.

Korea’s Constitution reflects this structure. It first declares the rights and duties of the people, then defines the institutions entrusted with power — the National Assembly, the executive and the judiciary. The order is not a ranking. Elected power is one means of realizing popular sovereignty, but the heart of the system lies in checks and balances. The Constitution states that legislative authority rests with the Assembly, judicial authority with the courts, and procedural rules with the Supreme Court.

Chun Dae-yeob, head of the National Court Administration, explains the judiciary’s position on establishing a special tribunal for insurrection cases during a full session of the Legislation and Judiciary Committee at the National Assembly on Sept. 4. [YONHAP]

It is true that Korea’s Court Organization Act provides for specialized courts such as patent, administrative and family courts. The intent is to process heavy caseloads efficiently, and each division is managed internally by the judiciary itself. That is different from creating a temporary special tribunal for a specific defendant at a specific political moment. Would any defendant accept such a tribunal as legitimate? A constitutional challenge would be inevitable, dragging out trials. Even if the Constitutional Court upheld the measure, the precedent could prove destabilizing. A future government might cite it to establish a “special retrial tribunal for insurrection” to overturn earlier rulings.

The question is whether the administration and ruling party are prepared to accept that risk. The history of Korea’s democracy shows that whenever power grew unchecked, citizens resisted. To argue that elected power stands above constitutional principles is to forget that very history.

This article was originally written in Korean and translated by a bilingual reporter with the help of generative AI tools. It was then edited by a native English-speaking editor. All AI-assisted translations are reviewed and refined by our newsroom.