Resolve judicial crisis through constitutional reform

Attempts to redraw the judicial system through partisan confrontation — treating one court as “ours” and another as “theirs” — risk deepening division rather than strengthening democracy.

Chung Hyo-shik

The author is the social news editor at the JoongAng Ilbo.

Tensions between the Supreme Court and the Constitutional Court over the proposed introduction of constitutional complaints against adjudications are escalating, raising broader concerns about the balance of power in Korea’s constitutional system.

Former and current Constitutional Court chiefs who had long opposed the measure on the grounds that it would effectively create a fourth level of trial have recently aligned with the ruling Democratic Party. The dispute between elected authorities — the president and the National Assembly — and the unelected judiciary has now evolved into a confrontation between the two constitutional institutions that represent the judicial branch, highlighting strains within the separation of powers.

A view of the Constitutional Court building. Completed in 1993, the structure features nine hibiscus sculptures on its roof, symbolizing the court’s nine justices. [JOONGANG ILBO]

Kim Sang-hwan, the Constitutional Court president and a former Supreme Court justice, had consistently opposed the system while serving as a judge, arguing that it would undermine the three-tier trial structure with the Supreme Court as the final authority. During his confirmation hearing last July, however, he said introducing the system through constitutional revision would be the clearest solution. Since taking office, he has taken a more supportive stance, describing the issue as one the legislature should address to strengthen protection of fundamental rights.

Former Constitutional Court President Lee Kang-kuk has also reversed his position. Although he opposed the measure as a working-level official when the Constitutional Court Act was drafted in 1988, he recently said in a media interview that his earlier view had been mistaken and that the Supreme Court’s status as the highest court applies within the judiciary, not in relation to other state institutions.

Such reversals are difficult to explain solely as institutional pragmatism. Six of the nine Constitutional Court justices, including the president, are appointed by the president and the National Assembly, underscoring the court’s political constraints.

The ruling party is simultaneously pursuing a set of judicial reform bills that include expanding the number of Supreme Court justices and introducing a new offense to punish judges for alleged distortion of the law. Taken together, critics argue, the package resembles a Korean version of a court-packing plan.

The push began shortly after the Supreme Court’s decision last May to remand a case involving President Lee Jae Myung under election law. The involvement of former and current Constitutional Court leaders in what critics see as a broad political offensive against Chief Justice Jo Hee-de, who has more than a year remaining in his term, has raised concerns about judicial independence.

The constitutional design of checks and balances among the legislative, executive and judicial branches dates back to the founding Constitution of 1948, drafted under the guidance of legal scholar Yu Chin-o. While the system of government ultimately shifted from a cabinet system to a presidential one, the provisions establishing the judiciary — including the Supreme Court as the highest court and the principle that judicial power rests with the courts — were adopted largely as originally drafted.

Even after the Constitutional Court was established in its current form under the 1987 Constitution, its role was limited. Courts could refer questions of constitutionality regarding statutes, but the Constitutional Court was not designed to directly review ordinary judicial rulings.

The erosion of this framework did not begin recently. Former President Yoon Suk Yeol bears responsibility for earlier strains on the constitutional order after attempting to deploy armed troops to the National Assembly, an act that resulted in a life sentence at the trial court level. His actions reflected an effort to subordinate other branches of government.

The Supreme Court building in Seocho District, Seoul. [YONHAP]

At the same time, the judicial reform bills now being pushed by the ruling majority would alter core principles such as the three-tier trial system and judicial independence. Advancing such changes without sufficient debate or consensus risks undermining the constitutional balance.

Constitutional arrangements are not immutable. Democratic institutions must evolve to reflect changing social demands. If the judiciary fails to serve as the final safeguard for fundamental rights and a check on elected power, structural reform may be necessary.

Such changes, however, require public explanation and consent through constitutional revision. Attempts to redraw the judicial system through partisan confrontation — treating one court as “ours” and another as “theirs” — risk deepening division rather than strengthening democracy.

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.