27.Case on the Prohibition of Collective Action of Public Officials and Political Activities of Teachers’ Union

[26-2(A) KCCR 242, 2011Hun-Ba32, 2011Hun-Ka18, 2012Hun-Ba185 (consolidated), August 28, 2014]

In this case, the Constitutional Court held the provision of the State Public Officials Act that prohibits collective actions of public officials and the provision of the Act on the Establishment, Operation, etc. of Trade Unions for Teachers that prohibits political activities of trade union for teachers do not violate the principle of clarity, principle against excessive restriction and principle of equality under the Constitution, despite they restrict the freedom of political expression of trade union for teachers.

Introduction of Case

(1) Petitioners of 2011Hun-Ba32 who worked for public elementary schools or secondary schools as teachers were executive members of the Korean Teachers and Education Workers Union (hereinafter, ‘KTU’). At the first declaration of the state of affairs by teachers affiliated to KTU on June 18, 2009, petitioners criticized the then government for the self-righteous operation of administration that allegedly caused the crisis of democracy and lead the issuance of the declaration of the state of affairs to demand the apology of the President and the renovation of administration operation. The then minister of Education, Science and Technology decided to take disciplinary actions against the petitioners. Against the disciplinary actions, the petitioners issued the second declaration of the state of affairs on July 19, 2009. The schoolsuperintendent of Gyeongsangbuk-do dismissed or suspended the petitionerson November 26, 2009. The petitioners initiated the lawsuit to annul the disciplinary actions and also filed a motion to request a constitutional review of the State Public Officials Act (hereinafter, the “SPOA”) and

Act on the Establishment, Operation, etc. of Trade Unions for Teachers (hereinafter, the “TUT Act”). When the motion was denied, the petitioners filed the constitutional complaint.

(2) Petitioners of 2011Hun-Ka18 who worked for public elementary schools or secondary schools as teachers were executive members of the KTU. The petitioners were suspended by the school superintendent of Seoul for the participation in the first and second declaration of the state of affairs on December 10, 2009. The petitioners initiated the lawsuit to annul the disciplinary action and filed a motion to request a constitutional review of the part of ‘any’ of Article 3 of the TUT Act while the trial was pending, which was sustained. According to the motion, the ordinary court requested a constitutional review of the aforementioned provision.

(3) Petitioners of 2012Hun-Ba185, who worked as teachers of public schools, were also executive members of KTU. The school superintendent of Busan suspended the petitioners for the participation in the first and second declaration of the state of affairs on December 21, 2009. The petitioners initiated the lawsuit to annul the disciplinary actions and filed a motion to request a constitutional review of Article 3 of the TUT Act while the appellate court procedure was pending. When the motion was denied, the petitioners filed this constitutional complaint.

Provisions at Issue

The subject matter of review is the constitutionality of the part of ‘this Act’ of Article 78 Section 1 Item 1 with regard to the part of ‘collective activities other than public services’ of the main text of Article 66 Section 1 of the State Public Officials Act (revised by Act No. 8996 on March 28, 2008) and the part of ‘any political activity’ of Article 3 of the Act on the Establishment, Operation, etc. of Trade Unions for Teachers (enacted by Act No. 5727 on January 29, 1999, but prior to

the revision by Act No. 10132 on March 17, 2010), the substances of the provisions at issue are as follows:

State Public Officials Act (revised by Act No. 8996 on March 28, 2008)

Article 78 (Causes for Disciplinary Disposition) (1) If a public official falls under any of the following subparagraphs, a resolution on disciplinary action shall be requested, and a disciplinary disposition shall be taken according to the result of such disciplinary resolution:

1. Where he/she violates this Act or any order issued under this Act

Act on the Establishment, Operation, etc. of Trade Unions for Teachers(enacted by Act No. 5727 on January 29, 1999, but prior to the revision by Act No. 10132 on March 17, 2010)

Article 3 (Prohibition of Political Activities) Trade unions for teachers (hereinafter referred to as “trade unions”) shall not be allowed to participate in any political activity.

Summary of Decision

A. Constitutionality of the provision of the SPOA

(1) The term of ‘collective activities other than public services’ of the SPOA can be interpreted as ‘collective activities of public officials that may not conform to the obligation of concentration on duties for thepurpose against the public interests or that may impair the credibility of public services’, when Article 21 Section 1 of the Constitution that protects the freedom of press, publication, assembly, and demonstration, the legislative purpose of the SPOA, and the obligations of sincerity and concentrationon duties of public officials under the SPOA are comprehensively considered. Thus, the principle of clarity is not infringed.

(2) The instant provision of the SPOA prohibits the collective political

expression of public officials in that collective activities could inherently affect public order or legal peace, contrary to individual activity; collective political expression of public officials could be regarded as the expression to represent the group interests of public officials; and it could impair the political neutrality and undermine the fairness and objectivity of public services. Especially in our political practices, the collective criticism or opposition against the government policy would be misunderstood, being regarded as intervention in politics or support for a particular political party, even if it does not express any support for a particular political party or political power. Therefore, it is unavoidable to restrict the collective expression of public officials, concluding that the principle against excessive restriction is not violated.

B. Constitutionality of the provision of the TUT Act

(1) The provision of the TUT Act prohibits ‘any’ political activity. Nonetheless, the comprehensive consideration of the Constitution and the Framework Act on Education that declare the political neutrality of public officials, the legislative purpose of the TUT Act, implications of trade unions for teachers (hereinafter, “TUT”), and other related provisions suggest that the instant provision of the TUT Act inherently allows activities to promote the economic and social status of teachers as union activities, and also allows political expression with regard to the education policy of elementary or secondary schools as education experts as long as it does not impair the political neutrality and does not infringe the right to education of students. Because it is reasonable to interpret the meaning of the provision of the TUT Act in a limited sense, the principle of clarity is not violated.

(2) Despite the provision of the TUT Act prohibiting any political activity of TUT, the prohibition of political activities with the collectivity of TUT does not violate the principle against the excessive restriction in that activities of teacher may substantially affect character buildings of

students who are in process to build sound character through education; a political expression of teachers that is explicitly and extensively made under the name of TUT may bring biased values to students who are not mature in developing sound views toward the world and life based on diverse values; and the allowance of teachers’ political activities under the name of extensive protection of freedom of political expression could impair the substance of the right to education of students who deserve to be a responsible and sound person through education.

(3) While the provision of the TUT Act prohibits TUT from participating in political activities which are permitted to general trade unions, it does not violate the principle of equality to distinguish TUT from a general trade union, public officials union or organization of university faculty because the TUT is strictly required to be neutral in politics with regard to business and activities, due to the protection of political neutrality of education; the TUT is allowed to participate in activities to improve working conditions even though the TUT Act prohibits ‘any’ political activity, contrary to the Act on the Establishment, Operation, etc. of Trade Unions for Public Officials; and university faculty, who can participate in political activities without restraint, educate university students who would not be affected by the political tendency of their professors.

Summary of Opinion of Partial Dismissal by Three Justices

It were the entire teachers who signed the declarations, not the TUT, who issued the declarations of the state of affairs of this case pending in ordinary court. Because the instant provision of the TUT Act restricts political activities of TUT, not ones of individual teacher, and a penal provision of the instant provision of the TUT Act is not provided, the relevance to the underlying case is not found.

Summary of Dissenting Opinion by Two Justices

(1) The decision of whether an expression impairs public interests or not depends on the values or ethical belief of a person, implying that the interpretation of law enforcement cannot determine the meaning of the expression from an objective perspective. Even if ‘collective actions other than public services’ can be limitedly interpreted as ‘collective actions that may bring negative effects to impair the obligation of concentration on duties against public interests’, the meaning is still unclear, concluding that the principle of clarity is violated.

In addition, the provision of the SPOA prohibits any collective expression regardless of the duties or rank of public officials or office hours, even if it is expressed to protect constitutional orders. Therefore, it violates the principle against excessive restriction.

(2) The instant provision of the TUT Act prohibits ‘any political activity’ of teachers or TUT. Even though some political activities of teachers may be restricted for the political neutrality of education, the restriction on place, target, and contents of political activities should be limited to a partisan propaganda, political argument, or campaign toward students at schools, allowing other political activities of teachers under their political basic rights. Therefore, it violates the principle against excessive restriction.

It is unreasonable discrimination, violating the principle of equality, to prohibit any political activity of teachers of elementary or secondary schools, while university faculty can participate in political activities.