National Security Law in New Democracies: A Perspective from the Constitutional Courts of South Korea and Taiwan

Abstract Constitutional courts in new democracies often face a critical yet underexplored dilemma regarding the authoritarian-era structures of national security law. On the one hand, as a legal tool favoured by authoritarian regimes, the legacy of national security law can disrupt the post-transition democratic landscape; on the other hand, contemporary security imperatives may justify greater governmental intervention. How do constitutional courts navigate these competing pressures in new democracies? In this article, I adopt an interdisciplinary approach to examine how national security law is navigated by the Constitutional Courts in South Korea and Taiwan – two new democracies with similar trajectories. The Korean Constitutional Court exhibits a more deferential posture towards national security grounded in contemporary imperatives, whereas the Taiwanese Constitutional Court is more willing to reject security-first narratives inherited from its authoritarian past. This comparative analysis shows that these courts, by adjudicating national security cases through general constitutional principles, shape the interplay between authoritarian legacies and contemporary security governance. In doing so, they participate in the ongoing constitutional negotiation between security and liberty that lies at the heart of constitutional democracy.