On November 2nd, the Democratic Party of Korea, the nation’s largest opposition group, held a massive protest at Gwanghwamun Square. They accused the current conservative administration of fueling a “crisis of democracy,” labeling it a “dictatorship.” However, this scene is not new: four years ago, in the same location, the People’s Power Party made the same accusation against the Democrat administration. Despite regime changes between left and right, the blame game continues, revealing that the decline of Korea’s democracy is not tied to any single party.
To know if democracy is truly in crisis, one must first define democracy. Contemporary constitutional doctrine distinguishes democracy from autocracy based on the autonomy of producing legal norms. In an autocracy, laws are imposed by an external sovereign, often a tyrant or oligarchy. In a democracy, however, the people are the sovereign with the autonomy to establish the constitution and laws through elections or direct participation. The executive and judicial branches derive power from this constitution and remain circumscribed by it. When these institutions impose laws on the people, sovereignty shifts away from them. Hence, democracy falters not from the rule of any particular party but when external institutions rob the autonomy of producing laws from the people.
In light of these elements, if either the Democratic or Conservative party in Korea seeks to safeguard democracy, they must denunciate the judicialization of politics. Over the past two decades, courts have increasingly been called upon to address public policy questions and social conflicts—such as capital relocation, adultery law, deployment to Iraq, the death penalty, the national security law, euthanasia, abortion, and conscientious objection. Initially, expanding the scope of the court’s role was aimed at ensuring individual rights and the legislation’s compatibility with the Constitution, preventing abuses of power seen under past authoritarian regimes. Yet, the danger emerged as judges began dictating what the law should look like rather than reviewing its adherence to the Constitution.
As stated by Montesquieu, judges must be no more than “the mouth that pronounces the words of the law.” This was challenged in 2012 when Justice Kim Neung-Hwan stated he felt he was “building a new state” when ruling that the 1965 treaty did not bar Korean citizens from filing a lawsuit against Japanese companies for wartime reparations. However, the role of judges is not to “build” or create something new. It is to interpret and apply the law or treaty as written, referring to the original text and intent of its makers. Judges are not tasked with pursuing societal change or progress—that is not their mandate. They are the executors of the law, not social justice activists.
The essence of Justice Kim’s ruling does not lie in whether Korean citizens have the right to file a lawsuit against Japanese firms regarding reparation. His ruling demonstrated how the court applied domestic legal principles—principles without claim-preclusive effect in the international society—to a diplomatic matter involving complex inter-state interests. Interpreting an international treaty, which requires non-legal means like inter-state negotiations, should fall to the politically accountable executive branch. The judiciary, lacking such accountability, should have refrained from reviewing cases within the political realm. Justice Kim’s decision deviated from this principle of judicial restraint, initiating the long-standing diplomatic dispute between South Korea and Japan.
However, the problem extends beyond political questions and into social issues, with abortion being a prominent example. In 2019, the Constitutional Court ruled the abortion ban as violating the right to self-determination, overturning the 2012 ruling that upheld the ban as serving the public interest by protecting fetal life. The problem is not which ruling was correct; it is that a case raising fundamental questions about human life and existence was decided by judges who neither represent the nation nor have the authority to create answers outside the law. The Constitution does not clarify whether Article 10’s guarantee of human dignity encompasses protecting potential life or the extent of society’s obligation to it. Therefore, such questions should not have been decided by judges who do not have the legitimacy to define what life or human existence means for Korean society.
Moreover, the threat to democracy is evident when the court silences public debate on social issues, stopping individuals who could otherwise persuade one another and influence their elected representatives for changes. A system where fourteen unelected judges create and impose norms beyond the scope of the law on questions meant for the people to answer is clearly not a democracy. Allowing a small, unrepresentative group of privileged elites—mostly educated at Seoul National University, with only three women members—to make social changes that lack the representation of the people aligns more with an oligarchy. Accordingly, democracy fractures as the judiciary encroaches on the people’s role as the sovereign, stripping them of their autonomy to produce laws.
Ironically, both Democrats and Conservatives hold responsibility for this threat to democracy, even as they accuse each other of causing it. Fearing backlash from key support groups like Christians, they avoided debates like abortion and euthanasia, delegating the decisional power to the court. In doing so, Parliament has shrunk its autonomy, willingly surrendering its constituent power to the judiciary. These politicians claim to defend democracy yet actively contribute to its decline by avoiding their duty. They have protected neither democracy nor national sovereignty. It is time for the Korean people to see through their empty rhetoric and reclaim the power that belongs rightfully to them.
Le Dragon Déchaîné 