Anti-Constitutional Governance and the Crisis of the Rule of Law: 

A Conservative Strategy for Survival

Sohn Yong Woo

Policy Committee Member,

Hansun Foundation

1. The Rule of Law as a Check on Power

2. Power Seeking to Stand Above the Constitution

3. Conservatism’s Strategy for Constitutional Renewal

1. The Rule of Law as a Check on Power

The current administration came to power in the name of holding its predecessor accountable for anti-constitutional conduct and disregard for the rule of law. Yet, as time passes, the current administration itself is revealing a dangerous tendency to use the Constitution and the rule of law as instruments of power. The justification of correcting the wrongs of past power cannot legitimize the anti-constitutional and law-defying conduct of present power. The rule of law is both the standard by which past power is judged and the principle by which present power is restrained.

The national spirit and identity of the Republic of Korea lie in liberal democracy and republicanism. Liberty guarantees the dignity and creativity of the individual. Democracy realizes the principle of popular sovereignty. Republicanism establishes public responsibility and the common good within the national community. The core principle that binds these three pillars into a single constitutional order is the rule of law.

The essence of the rule of law lies in placing power under the law. No one may stand above the law, and no one should be pushed outside the protection of the law. Article 11, Paragraph 1 of the Constitution declares: “All citizens shall be equal before the law, and there shall be no discrimination in political, economic, social, or cultural life on account of sex, religion, or social status.” Neither the President, nor members of the National Assembly, nor the judiciary, nor ordinary citizens can be exceptions to this principle. This is equality before the law. It is the basic order that sustains the Republic of Korea as a free and democratic republic. For this reason, in a liberal democratic society, the constitutional value of equality is as important as liberty.

Liberty without the rule of law becomes license. Equality without the rule of law destroys fairness. Democracy without the rule of law becomes the tyranny of the majority. Republicanism without the rule of law degenerates into a pretext for rule by those in power. Therefore, the rule of law is the supreme constitutional axis that enables liberty and equality, democracy and republicanism, to function together. When the law is shaken, the state tilts toward authoritarianism. When power dominates the law, the country crosses the threshold into dictatorship. Is this not the painful lesson already taught by the constitutional history of the Republic of Korea?

2. Power Seeking to Stand Above the Constitution

The crisis facing the Republic of Korea today is a new crisis of the Constitution and the rule of law. The Lee Jae-myung administration’s conduct of state affairs goes beyond ordinary policy conflict or partisan confrontation. It is emerging as a current of anti-constitutional governance and disregard for the rule of law, seeking to place power above the Constitution. The controversy over a special prosecutor with authority to dismiss indictments, the expansion of Supreme Court justices, the restructuring of the judicial system, and attempts at politically motivated constitutional revision all point in the same direction. They represent a dangerous attempt not to subordinate power to the Constitution, but to subordinate the Constitution and the rule of law to the logic of expanding power.

Since the launch of the Lee Jae-myung administration, the constitutional order of the Republic of Korea has once again been placed under a grave test. Democracy is not completed by majority rule alone. Even if a parliamentary majority and presidential power are combined, that power must be exercised within the limits of the Constitution. Separation of powers, judicial independence, equality before the law, the principle of legality in criminal law, and due process are pillars of the constitutional order. Yet the series of judicial and constitutional changes recently pursued by the ruling bloc goes beyond the category of reform. It reveals the character of anti-constitutional governance aimed at institutionally resolving the administration’s judicial risks and morally neutralizing political opponents.

The most serious case is the Democratic Party’s proposed “Special Prosecutor Act on the Truth-Finding Investigation into Fabricated Indictments under the Yoon Suk Yeol Administration.” The core issue is that the bill grants the special prosecutor authority to determine whether to maintain prosecutions in cases that have already been indicted. The ruling bloc calls it a “special prosecutor act on fabricated indictments.” The opposition criticizes it as a “special prosecutor act for dismissing indictments” or a “self-pardon special prosecutor act,” because it could be connected to the possibility of dismissing prosecutions in trials related to President Lee Jae-myung. The Supreme Prosecutors’ Office expressed concern that the bill could exert undue influence on the independence of ongoing trials. Concerns have also been raised within the legal profession and legal academia that a structure in which a special prosecutor determines whether to maintain prosecutions in cases related to the President could undermine equality before the law and the independence of judicial proceedings.

At the heart of the rule of law lies a simple principle: no one stands above the law. The Constitution grants the President immunity from criminal prosecution while in office, except in cases of insurrection or treason. Yet this is a procedural safeguard for the stability of the presidency, not a personal exemption from criminal responsibility.

Those in power must not be allowed to institutionally suspend or neutralize criminal proceedings that are unfavorable to them. Once such a path is opened, the rule of law begins to collapse from within. The President, too, must remain under the control of the Constitution and the law. When this principle collapses, a ruler who stands above the Constitution emerges. At that moment, the rule-of-law state collapses, and the path to dictatorship opens, where the will of the ruler replaces the law.

The issue of increasing the number of Supreme Court justices belongs to the same context. Under the leadership of the Democratic Party, an amendment to the Court Organization Act was passed to increase the number of Supreme Court justices from the current 14 to 26. From the perspective of reducing trial delays, easing caseload burdens, and strengthening judicial expertise, discussions on increasing the number of Supreme Court justices may be considered. However, if the very composition of the highest court is drastically changed at a time when the judicial risks of a particular administration are acute, this cannot help but be seen not as genuine judicial reform, but as judicial restructuring favorable to those in power. In the end, the core issue in increasing the number of Supreme Court justices is not the number itself, but the independence of the judiciary and the fairness of trials.

Attempts at constitutional revision are likewise difficult to regard as genuine constitutional reform. Constitutional revision is a grave undertaking that redesigns the basic order of the state. It must therefore be pursued on the basis of sufficient public deliberation, bipartisan agreement, and a future-oriented national vision. Yet amid growing controversies over anti-constitutional governance and disregard for the rule of law including the special prosecutor controversy over dismissal of indictments, the expansion of Supreme Court justices, and the restructuring of the judicial system putting constitutional revision at the forefront while branding the opposition as “forces of insurrection” departs from the proper essence of constitutional reform. It is a political scheme to dilute the controversy over the ruling bloc’s own damage to the rule of law and to monopolize the cause of defending the Constitution. This is not constitutional revision, but the manipulation and abuse of the Constitution.

Sun Tzu’s maxim, “war is the way of deception,” emphasizes the role of deception in warfare. In politics, too, such deception sometimes operates. This attempt at constitutional revision speaks of defending the Constitution on the surface, but in reality it is being used as a political shield to brand the opposition as anti-constitutional forces and to cover up the administration’s disregard for the rule of law. The Constitution is not a weapon of partisan politics. It is a common norm that binds both ruling and opposition parties, and the supreme promise of the national community that restrains power and protects the freedom of the people. What is needed now is not politically motivated constitutional revision, but constitutional normalization: restoring the rule of law and preventing the arbitrary exercise of power.

3. Conservatism’s Strategy for Constitutional Renewal

Who, then, can stop this constitutional crisis? Can the People Power Party shoulder that role? The People Power Party already bears a heavy responsibility before the constitutional order. The martial law crisis and the impeachment turmoil are fatal wounds that conservative politics in the Republic of Korea has left before history. The conservative party, which should have defended liberal democracy and the rule of law, failed to prevent a situation that shook the constitutional order. Nor did it show the people the stability and responsibility in state governance expected of a ruling party. This was more than a political mistake. It was a historic grave error that damaged the very reason for the existence of conservatism.

Conservatives are a force that protects the continuity of the state, the stability of the rule of law, the order of the community, and individual liberty together. In this sense, conservatism carries the grave mission of responsible preservation. Yet the People Power Party strayed from that path. In the face of the failure of power, it failed to establish a clear ethic of responsibility, and its historical reflection and self-examination were far from sufficient. It also failed to show sufficient sincerity in apology and renewal to the people wounded by martial law and impeachment. As a result, conservatives lost the people’s trust as a force defending the Constitution.

Nevertheless, the only realistic force that can stop the current constitutional crisis within institutional politics is the People Power Party. This is regrettable, but it is also reality. The reason is that the People Power Party holds the constitutional position of the largest opposition party capable of checking majority power. In a situation where legislative and executive power are moving in the same direction, and even the composition of the judiciary is being reorganized under the influence of the administration, the minimum institutional breakwater capable of stopping this trend is the opposition party.

The problem is leadership. The People Power Party has failed to properly settle its responsibility for the past and is showing a powerless attitude even in the face of the current crisis. It has failed to present the strategy and public message expected of the largest opposition party against the anti-constitutional governance of the Lee Jae-myung administration. What is needed now is sincere leadership that can engage in painful reflection before the people, reestablish the standards of the Constitution and the rule of law, and persuade the public, in language they can understand, of the anti-constitutional nature of the administration. The renewal of conservatism begins with reestablishing the moral cause to confront the present crisis.

Therefore, while preparing for the local elections, the People Power Party must at the same time be reborn as a party that defends the Constitution. To this end, the party needs three strategies of renewal through sacrifice.

First, it must never again evade or excuse its constitutional responsibility for the wounds of martial law and impeachment. Only then can it acquire the moral standing to criticize the anti-constitutional nature of the Lee Jae-myung administration. The moment it returns to the language of excuses and defense, even the last opportunity for conservative renewal will disappear.

Second, the People Power Party must directly criticize the anti-constitutional conduct of the Lee Jae-myung administration and the Democratic Party. Yet the basis of that criticism must be found in the Constitution and the rule of law. If it reduces the issue to political strife or camp confrontation, it cannot persuade the people. The current attempts at anti-constitutional governance and disregard for the rule of law must all be defined as the problem of power seeking to stand above the law. The party must make clear the principles that no one may stand above the law, that no power may shake the judiciary, and that the Constitution cannot become a tool of partisan politics.

Third, the remaining elections must become a foothold for defending the Constitution. This election is not simply a competition for local power. It is an election to establish the minimum democratic balance needed to check the unilateral exercise of power. The People Power Party must bind everyday livelihoods, the rule of law, checks on local power, liberal democracy, and the defense of the constitutional order into one coherent message. Merely calling for “judgment on the administration” is not enough. It must present a concrete vision of a responsible opposition party that protects the Constitution and revives the daily lives of citizens.

Conservatives must once again speak in the language of the Constitution. They must stand before the people in the language of liberal democracy, the rule of law, republicanism, and civic responsibility. If the People Power Party cannot walk this path, conservatism will collapse once again. But if it does walk this path, the remaining elections can become not merely a defensive battle, but a starting point for conservative renewal and the defense of the Constitution.

This article may differ from the views of the Hansun Foundation

(※ It's a translation based on machine translation)