Park Jung-won, Ph.D. in law from the London School of Economics (LSE), is a professor of international law at Dankook University.
Judicial reform or judicial insurance?
By Park Jung-won
Former President Yoon Suk Yeol’s declaration of martial law was unmistakably a grave challenge to the constitutional order. The legal judgment rests with the courts, and the recent first-instance conviction deserves respect. Martial law placed the nation under acute constitutional strain and provoked widespread fear and anger. It was denounced as an abuse of authority and a breach of constitutional limits. But what does the present moment reveal?
Under the banner of a “Revolution of Light,” power shifted. The ruling Democratic Party of Korea (DPK), firmly aligned behind President Lee Jae Myung, presents itself as the force that restored constitutional normalcy. Yet democratic recovery is not secured by electoral turnover alone. It is measured by how those who command legislative power handle the institutional constraints that bind them. The language of renewal now coexists with an evident readiness to redraw those very constraints.
The so-called “three judicial reform bills” have now been enacted in full. The DPK, armed with an overwhelming legislative majority and unified discipline, pushed them through with striking speed. Considered together, these measures alter foundational features of the country’s judicial architecture without formally amending the Constitution. In substance, if not in text, they recalibrate the equilibrium the constitutional framework presupposes.
A constitutional system is more than parchment. It depends on precedent, restraint and accumulated trust. When a dominant majority restructures institutional boundaries in rapid succession, the precedent itself becomes consequential. It signals that guardrails may be adjusted whenever enough legislative votes are secured. Such changes to the letter of the law may be enacted following constitutionally permitted procedures, but can erode the spirit of the constitution, particularly the people’s trust in it.
First, the procedural reform that effectively introduces a fourth tier of judicial review weakens the principle of finality. Its declared aim, offering an additional opportunity to correct injustice, appears humane. Yet justice also requires closure. Endless review can entrench delay and uncertainty rather than enhance fairness. Litigation is not merely a contest of arguments; it is a contest of endurance. Those able to sustain extended proceedings stand to benefit most from additional layers of appeal. For ordinary citizens, even three levels already impose heavy burdens of time and cost. Expanding review may sound egalitarian, but it risks deepening inequality within the system itself.
Second, the proposed expansion of the Supreme Court is even more revealing. The plan would add twelve justices, four each year over three consecutive years. Under this schedule, the bulk of new appointments would occur within the current presidential term. The scale and timing are not incidental details; they define the reform’s immediate political impact. This is not administrative housekeeping; it is structural redesign by arithmetic. No serious observer can fail to notice who stands to benefit most directly from such concentration of appointment power.
If the objective of these reforms were solely efficiency, a longer implementation timeframe and bipartisan safeguards could have been considered. Instead, the sequencing ensures that the most significant transformation of the Court’s composition in decades aligns with a single political tenure. A court of last resort will define constitutional meaning for generations. Its authority rests not only on competence, but on distance from immediate political interest. When enlargement is structured in a way that concentrates appointment power so clearly, the issue is no longer abstract. It readily invites suspicion that institutional redesign is being used to secure a more favorable judicial environment for one side long into the future.
Third, the proposed offense of “distortion of law,” aimed at criminal rulings, would expose prosecutors or judges to potential criminal liability if their decisions are later deemed to be “distorted.” Accountability is indispensable in any democracy. Yet criminal adjudication occupies the most sensitive terrain of state authority, where individual liberty is directly at stake. If judges must weigh the prospect of personal prosecution alongside legal reasoning, independence will inevitably be stifled. It is difficult to identify a mature democracy that treats judicial interpretation as a potential crime.
These initiatives are not routine policy adjustments. They simultaneously affect the finality of judicial review, the composition of the highest tribunal and the independence of the judiciary in criminal proceedings — the structural pillars of the judicial system. Yet they have been advanced with remarkable velocity, propelled by legislative dominance rather than broad civic deliberation.
Legality alone does not guarantee constitutional legitimacy. Enacting legislation through proper procedure does not resolve whether it preserves institutional balance. The Constitution exists not only to empower majorities, but to restrain them. Democracies endure when those who wield authority recognize that not everything legally possible is constitutionally defensible.
If legality is sufficient to justify every use of power, why do we condemn so many destructive statutes in modern history? Twentieth century Europe demonstrated that parliamentary majorities acting within formal procedures could nonetheless erode institutional boundaries. Laws were enacted. Formalities were observed. Everything appeared to proceed “according to the rules.” Yet the rules themselves shifted, and the consequences became visible only later.
The central difficulty in Korean politics today is not the existence of a majority, but how power is exercised. Is this judicial reform, or is it an effort to shield President Lee from unresolved legal peril? The issue is not numbers, but whether constitutional limits are treated as binding or negotiable.
Those who denounced martial law in the name of principle must now apply that same standard to themselves. If crossing constitutional lines was intolerable then, it cannot become defensible now. A boundary does not lose its force simply because the person crossing it has changed. If those who command today’s legislative majority have learned nothing from the excesses they once condemned, they risk repeating the very pattern they claimed to correct.
Courts can be enlarged and procedures rewritten. But the record of how and why that power was used will remain. The relaxation of standards in the name of necessity today may come to haunt those who softened them later. History does not distinguish between those who first cross a line and those who follow.
Park Jung-won (park_jungwon@hotmail.com), Ph.D. in law from the London School of Economics, is a professor of international law at Dankook University.