President Lee Jae Myung, center, poses for a photo with Chief Justice Jo Hee-de, left, and Supreme Court Justice Kim Sung-soo during a ceremony at the Blue House on Sept. 21 to confer a state decoration and present a certificate of appointment to Kim. Lee and Jo met for the first time since tensions emerged over the nomination of Supreme Court justices, though the controversy remains unresolved.PRESIDENTIAL OFFICE
Lee Jae-seung
The author is a professor of international studies at Korea University and head of the Ilmin International Relations Institute.
The rule of law can collapse wearing the face of law. As dry language about court sizes, agencies, appointments and discipline is repeated, power shifts. The judiciary can become a manageable organization. Power need not write judgments; it can manage the institutions surrounding them. Judicial independence cannot be protected by individual judges’ consciences alone.
Hungary and Poland illustrate such crises. After former Hungarian Prime Minister Viktor Orban took power in 2010, Hungary lowered judges’ retirement age, pushing out senior judges. The Constitutional Court was expanded, appointments favored the governing majority and judicial administration tilted toward political power. In 2018, legislation created separate administrative courts for sensitive cases and expanded the justice minister’s appointment powers. Opposition protests could not overcome the governing party’s supermajority.
Poland offered a variation. After Law and Justice took power in 2015, the justice minister became prosecutor general, gaining authority over prosecutors and court presidents. The judicial appointments council came under the parliamentary majority’s influence, while the Supreme Court retirement age was lowered. A disciplinary chamber was created at the Supreme Court, with judges’ rulings and legal reasoning potentially subject to discipline.
In January 2020, judges from 20 European countries marched silently from Poland’s Supreme Court in their robes. They warned that undermining judicial independence threatened European democracy.
The European Union intervened. In 2019, the EU’s top court ruled Poland’s lower Supreme Court retirement age violated EU law. Hungary’s separate administrative courts were shelved amid pressure, while EU funds for Hungary were frozen. Freedom House’s Hungary score fell from 93 in 2005 to 65 in 2025, or “Partly Free.” Poland’s score fell from around 93 to 82 in 2026.
Restoration is harder. Poland began restoring the rule of law after President Donald Tusk’s government took office in late 2023, but judicial council reform met a presidential veto in 2026. Reversing appointment structures requires new laws and raises questions about existing judges and rulings. Push too aggressively and the new government can itself be accused of bypassing the law. A government seeking to restore it cannot bypass it.
Hungary ended Orban’s 16 years in power through elections in April 2026, but institutions do not disappear with an election. Laws, contracts, institutional networks and administrative practices remain. Democracy can be restored through elections. The rule of law cannot.
Korea need not be equated with Hungary or Poland. Yet changing the judiciary and other state institutions can leave lasting marks on trust. Korea has pursued prosecution reform, expansion of the Supreme Court, criminalization of intentional “distortion of law” and constitutional complaints against court rulings. The contexts differ, but the question remains: Are institutions being repaired, or is power being rearranged?
Institutions do not operate according to good intentions alone. Political actors exploit institutional openings. In Korea’s 2019 fast-track process, establishing the Corruption Investigation Office for High-ranking Officials, revising election law and adjusting investigative powers were bundled together. A mixed-member proportional representation system intended to improve proportionality instead produced satellite parties. Hastily designed institutions can generate unintended consequences.
Fragmentary interpretations of history and self-defined notions of the “public will” cannot alone justify judicial reform. An election victory is not a blank check for every institutional change. Courts and constitutional institutions must maintain some distance from electoral fervor. That distance is the space in which separation of powers exists.
The judiciary is often called democracy’s last defense, but it is also a front line where politics and law collide. Those within it therefore need more than professional ethics: They need a commitment to preserving separation of powers.
The judiciary must also reflect critically on itself. Favoritism toward former judges, a closed personnel culture and privileges enjoyed by the legal establishment deserve criticism. Lawyers who entered politics have sometimes displayed disappointing understandings of law.
But the judiciary does not deserve protection because it is perfect. It must be protected because separation of powers and judicial independence are foundations of democracy.
The rule of law belongs to no political camp. It is not a slogan to invoke when convenient, but a principle to uphold when inconvenient. Democracy’s true test is not its ability to change governments, but its ability to preserve institutions after power changes hands. Governments that reshape the judiciary speak of reform, but the price is paid not by governments but by the country. That cost returns slowly and lasts a long time.
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.
