There is an ancient and sacred rule that sustains a democratic state.
It is the separation of powers. The National Assembly, elected by the people, makes the laws (legislation); the government executes them (administration); and the unelected judiciary applies those laws exactly as written to conduct trials (judiciary). These three powers remaining in their respective rooms without encroaching on one another’s territory is the textbook picture of the separation of powers we all know.
Yet, observing the recent Constitutional Court or Supreme Court, this beautiful rule of labor division seems broken. Going far beyond merely interpreting the law, judges now hand down specific guidelines to the National Assembly, declaring, "This statute is non-conformable to the Constitution, so amend it in this direction within a matter of months." In jurisprudence, this is called "Judicial Activism."
Here, the sharp essence of your question rears its head: Is it not a blatant violation of the separation of powers and an abuse of authority for the judiciary—which has no power to make laws—to act as a de facto "second legislature"?
Unelected Subjects Climbing Atop the Shoulders of the Legislature
Through the lens of those critical of judicial activism, the current judiciary is arrogant to a fault.
The institution that directly carries out the will of the sovereign people is the National Assembly. For nine justices never directly chosen by the public to take statutes—crafted through the fierce debates and battles of lawmakers—and reduce them to scrap paper by invoking a subjective value like "the spirit of the Constitution" flatly contradicts the grand principle of the separation of powers.
If the judiciary begins to encroach upon the legislature’s inherent "right to enact laws," it reigns supreme as an unchecked "Upper House" and a de facto dictatorial body. Lawmakers who craft flawed laws can be dropped by the voters in the next election, but the public has no means to judge justices who hand down arrogant verdicts. From this perspective, judicial activism is a perilous tresspass that shakes the very foundations of democracy.
Not Mechanical Isolation, But a Check-and-Balance That Grabs the Collar
Conversely, proponents of judicial activism counter that this is precisely how "Checks and Balances"—the true essence of the separation of powers—functions most dynamically.
The separation of powers is not a "mechanical isolation" where three entities sit quietly in their own rooms with the doors bolted shut. It is an active system of checks, instructing one branch to boldly step in and slam on the brakes the moment another branch crosses the line or runs amok.
Suppose the National Assembly, swept away by populism or the madness of the majority, passes a law that brutally tramples the human rights of a minority. If the judiciary stands idly by, claiming, "We have no legislative power, so we will conduct trials exactly as this cold-blooded law dictates," it is not protecting the separation of powers. It is a dereliction of duty that abets the legislature’s rampage.
From this viewpoint, the aggressive intervention of constitutional adjudication is not a predatory seizure of the legislature’s domain. It is the legitimate operation of power, with the judiciary grabbing the legislature by the collar with all its might to prevent it from derailing outside the grand boundary labeled the "Constitution."
The Judiciary Has Neither the Purse Nor the Sword
How, then, do we prevent judicial activism from crossing the line and mutating into a monster that completely destroys the separation of powers? Alexander Hamilton, a founding thinker of the United States, summarized the fatal limitation of the judiciary as follows:
"The judiciary is beyond comparison the weakest of the three departments of power… because it has no influence over either the sword or the purse."
No matter how aggressively the Constitutional Court roars, "This law is unconstitutional; amend it like this!" the physical act of allocating a budget and revising the law must ultimately be carried out by the National Assembly (the legislature). Applying that law to the real world by mobilizing the police and the military remains the task of the government (the executive). If the judiciary loses public trust and repeatedly hands down absurd, dogmatic verdicts, the legislature and the executive can completely neutralize it by ignoring its rulings or impeaching its judges.
Ultimately, the reason judicial activism can breathe within the framework of the separation of powers is that it carries an inherent vulnerability: its verdicts can only become reality through the final "consent and cooperation" of the other two powers.
The Destiny of a Precarious Tightrope Walk
Judicial activism is a Janus, simultaneously possessing two faces: the "destruction" and the "completion" of the separation of powers.
Whether it becomes an arrogant overreach of authority that infringes on the legislature, or a sublime brake that shields the Constitution from the tyranny of the majority, is not predetermined by a formula. Everything hinges on how temperately the judiciary wields that blade while reading the atmosphere of the era, and how deeply the public recognizes the legitimacy of its verdicts.
The separation of powers is not a frozen, static monument. It is a precarious tightrope walk where three powers pull and push one another to maintain a razor-thin balance. To prevent the sharp blade of judicial activism from slicing the separation of powers apart, the watchful eyes of citizens—constantly questioning, "Is that verdict an abuse of power?"—remain the most vital safety net sustaining this perilous high-wire act.
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