Judicial reform is counter to principles of Kim Byung-ro

Just as the human body loses health when its internal balance collapses, a nation can suffer similar consequences when institutional equilibrium breaks down.

Kang Won-taek

The author is a professor of political science and international relations at Seoul National University.

President Lee Jae Myung has allowed the so-called “three judicial reform laws” to take effect. Although they were passed through legislative procedures in the National Assembly, the measures amount to a fundamental restructuring of Korea’s constitutional order that has remained largely intact since 1948. Formally they are amendments to ordinary laws, but in substance they represent a change closer to constitutional revision.

After a meeting of the National Judicial Supervisors Conference, Kim Byung-ro, center in white hanbok (Korean traditional dress), the first chief justice of Korea’s Supreme Court, visits the presidential residence with court leaders from across the country on Dec. 12, 1953. [PHOTO COURTESY OF THE SUPREME COURT]

Such a significant transformation has occurred without sufficient public debate, without meaningful consultation between the ruling and opposition parties and without serious consideration of the judiciary’s own views. Given these circumstances, several side effects and institutional tensions are likely to emerge.

A view of the Supreme Court building in Seocho District, southern Seoul [YONHAP]

One of the most controversial elements is the introduction of a constitutional complaint system that allows appeals against finalized court rulings. This measure effectively transforms Korea’s existing three-tier judicial system into a four-tier structure. Since 1948, the constitutional design has recognized the Supreme Court as the highest judicial authority. By allowing final judgments to be challenged before the Constitutional Court, the reform alters that structure in a fundamental way.

The Constitutional Court is now likely to face a sharp increase in its workload. It will also bear greater political pressure when dealing with sensitive issues involving political figures or state power. If the court reaches decisions that differ from those of the judiciary, its rulings may increasingly be interpreted through partisan or political lenses rather than purely legal ones.

Another measure expands the number of Supreme Court justices from 14 to 26 over three years. Concerns about this proposal were already raised in this column in September of last year. Expanding the size of a court to change its ideological balance is a well-known political tactic often described as “court packing.”

Such practices have appeared in countries where democratic institutions have weakened, including Hungary, Poland and Venezuela. Political leaders increase the number of judges in key courts and then appoint allies to fill the new positions, thereby shifting the court’s orientation.

What are the consequences? In their book “How Democracies Die” (2018), political scientists Steven Levitsky and Daniel Ziblatt noted that in 2004, the government of Hugo Chávez expanded Venezuela’s Supreme Court from 20 to 32 justices. In the nine years that followed, the court issued no rulings against the government. Whether Korea will experience a different outcome remains an open question.

Perhaps the most unusual provision of the three measures is the introduction of the so-called “crime of distorting the law.” Korea’s system of governance assigns different responsibilities to each branch of government. The National Assembly enacts laws, the executive branch implements them and the judiciary interprets them. The new measure proposes punishing judges for incorrect interpretations of the law.

This effectively creates an external authority empowered to reinterpret judicial interpretations themselves. Of course judges can make mistakes. For that reason Korea’s legal system already includes multiple layers of review. A decision can be reconsidered on appeal and ultimately examined by the Supreme Court.

Under the new framework, however, litigants who receive unfavorable rulings may claim that the problem lies not with their case but with a judge who allegedly distorted the law. Such accusations could weaken confidence in the stability and authority of the judicial system as a whole.

With the passage of the three laws the ruling Democratic Party of Korea has come to exercise influence not only over the presidency — often described in Korea as a “powerful presidency” — but also over the legislature and now potentially the judiciary. If current public opinion trends continue, the party could also perform strongly in the next local elections. That outcome would further concentrate political power.

This level of concentration would be unprecedented in the democratic era. The Democratic Party was able to push through these measures largely because it faced little immediate political pressure. If a strong rival party commanded high public support, it would have been far more difficult to advance such controversial policies using numerical majority alone.

Yet the main opposition party, the People Power Party, has struggled to present itself as a credible alternative. Instead of confronting the government effectively, it has often been consumed by internal disputes and conspiracy theories, including claims of election fraud.

Lawmakers of the People Power Party hold placards in protest against the ruling Democratic Party’s three judicial reform bills during a plenary session of the 432nd National Assembly (extraordinary session) at the National Assembly in Yeouido, Seoul, on Feb. 28, The related bills were later passed. [NEWS1]

Many citizens focused on demanding daily lives find it difficult to place their hopes in a party that appears preoccupied with such issues. As a result, the balance of power has weakened — not only between political parties but also among constitutional institutions.

Just as the human body loses health when its internal balance collapses, a nation can suffer similar consequences when institutional equilibrium breaks down.

The importance of judicial independence was emphasized at the birth of the Republic. On Aug. 16, 1948, Korea’s first chief justice, Kim Byung-ro, known by the pen name Ga-in, visited the National Assembly and addressed lawmakers.

He told them that legislators represent the people and should enact laws that judges can apply appropriately. Judges, he said, would faithfully administer those laws as public servants dedicated to fairness. For that reason the judiciary must maintain strict independence in the operation of its duties.

If it were subject to direct or indirect pressure from other authorities, Kim warned, even the most conscientious judges would face obstacles in carrying out justice.

Contrary to Ga-in’s hopes, the new reforms may place judges in precisely such circumstances — situations where indirect or direct pressure becomes possible. The principle of judicial independence, emphasized since the founding of the Republic of Korea, now faces a serious test.

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.