25. Case on restricting voting right of overseas electors

[26-2(A) KCCR 173, 2009Hun-Ma256, 2010Hun-Ma394(consolidated), July24, 2014]

In this case, the Constitutional Court held that Article 14 Section 1 of the National Referendum Act that restricts the suffrage of overseas Koreans does not conform to the Constitution, as it violates the right to vote of overseas Koreans. Also, the Court declared that the proviso of Article 15 Section 1 and Article 218-5 Section 1 of the Public Official Election Act that do not recognize overseas electors’ right to vote in an election of the National Assembly members of local constituencies due to the termination of the term of membership; Article 218-5 Section 1 of the Public Official Election Act that does not recognize the right to vote in the by-election of the National Assembly members and adopts the apply-and-register system for overseas electors for making the overseas electoral register; and Article 218-19 Section 1 and Section 2 of the Public Official Election Act that require overseas electors to visit a polling place in person prepared in embassies are not in violation of the Constitution.

Background of the Case

The complainants are Korean nationals over 19 years old, living in Japan and the U.S.A. without reporting domestic residence or being registered as residents (hereinafter, ‘overseas electors’). They filed this constitutional complaint on May 12, 2009, arguing that Article 218-4 Section 1 of the Public Official Election Act and Article 14 Section 1 of the National Referendum Act, etc., infringe on their fundamental right to vote as the provisions deprive them of their right to cast votes for National Assembly elections and participate in national referendums.

Provisions at Issue

The subject matters of this case are whether (1) the proviso of Article 15 Article 20 Section 4 of the Public Official Election Act (amended by Act No.12267, January 17, 2014) (hereinafter the ‘Right to Vote Provision’); (2) the part of ‘whenever an election of members of proportional representation for the National Assembly due to the termination of the term of membership are held, any elector who intends to vote overseas shall file an application for registration of an overseas elector’ in Article 218-5 Section 1 of the Public Official Election Act (amended by Act No. 11485,October 2, 2012) (hereinafter, the ‘Overseas Elector Registration Provision’); (3) the part of Article 218-19 Section 1 and Section 2 of the Public Official Election Act (amended by Act No. 11485, October 2, 2012) that requires overseas electors to visit in person overseas polling places to case votes (hereinafter, the ‘Overseas Voting Procedure Provision’); and (4) the part of ‘eligible voters registered as residents in their jurisdictional area and those, as Korean nationals residing abroad under Article 2 of the Act on the Immigration and Legal Status of Overseas Koreans, whose domestic residence reports have been made under Article 6 of the same Act’ in Article 14 Section 1 of the National Referendum Act(amended by Act No. 9467, February 12, 2009)’ (hereinafter, the ‘National Referendum Provision’) infringe on the fundamental rights of the complainants. The provisions at issue in this case are as follows:

○Public Official Election Act (amended by Act No.12267, January 17, 2014)

Article 15 (Voting Right) (1) A national of 19 years of age or above shall have a voting right for the elections of the President and the members of the National Assembly: Provided, That a voting right in the elections of National Assembly members of local constituencies shall only be granted to a national of 19 years of age or above who falls under any of the following subparagraphs, as of the basis date of preparation of the electoral register pursuant to Article 37 (1):

1. A person whose resident registration has been made in the relevant local constituency for the National Assembly;

2. A person whose residence is within the election district of the relevant local constituency for the National Assembly and who has been enrolled in the report register of domestic domicile thereof for not less than three months pursuant to Article 6 (1) of the Act on the Immigration and Legal Status of Overseas Koreans

○ Public Official Election Act (amended by Act No. 11485, October 2, 2012)

Article 218-5 (Application for Registration of Overseas Electors) (1) Whenever a presidential election and an election of members of proportional representation for the National Assembly due to the termination of the term of membership are held, any elector who intends to vote overseas, as a person whose resident registration has not been made or whose domestic domicile has not been reported, shall file an application for registration of an overseas elector with the National Election Commission from 150 days to 60 days before the election day (hereinafter referred to as the “period for application for registration of overseas electors” in this CHAPTER) in one of the following manners:

1. by visiting overseas diplomatic missions in person. In this case, Korean nationals can file an application on behalf of their family members (including spouses, lineal descendents and ascendants and spouses’ lineal descendents and ascendants) with the copy of their passport

2. by submitting an application to officers who make the rounds for overseas voter

3. by e-mail

Article 218-19 (Procedures for Voting of Overseas Election) (1) An overseas elector, etc. shall go to an overseas polling place and shall present a ballot paper, an envelope for sending and an envelope for return, which are received from his/her Gu/Si/Gun election commission, and an identification card (referring to a passport, resident registration card, public official identification card, driver’s license, or other

certificate issued by a public office or public agency of the Republic of Korea and by which a person is identifiable with a photograph attached thereto, or a certificate issued the government of his/her residing country and by which a person is identifiable with a photograph attached thereto and his/her name and date of birth are written thereon, to identify such elector) in the presence of the members of an overseas election commission and voting witnesses, and shall, after the identification is confirmed, enter a polling booth to write the name of a candidate (limited to a presidential election and an election of members of local constituencies for the National Assembly) or the name or mark of a party on a ballot paper, put such paper in an envelope for return and seal the envelope, and put such envelope in a ballot box before voting witnesses.

(2) Overseas elector who applied for regulation pursuant to Article 218-5 Section 1 Item 3, shall cast a vote pursuant to Section 1 after conforming their identity by presenting original copies of the documents publicly notified by the officer of the mission having jurisdiction over his/her area of residence under Article 3 to, and presenting any identification card pursuant to Section 1 if no photo to identify such elector was attached to the document.

○ National Referendum Act (amended by Act No. 9467, February 12, 2009)

Article 14 (Preparation of Pollbooks) (1) Each time a national referendum is held, the head of a Gu (including the head of an autonomous Gu, and in cases of a Si which is of the urban and rural complex form, it is limited to the Dong area), the head of a Si (referring to a Si where no Guis established, and in cases of a Si which is of the urban and rural complex form, it is limited to the Dong area), the head of an Eup/Myon (hereinafter referred to as “head of the Si/Gu/ Eup/Myon”), shall investigate for each voting district the eligible voters registered as residents in his jurisdictional area and those, as Korean nationals residing abroad under Article 2 of the Act on the Immigration and Legal Status of Overseas Koreans, whose domestic residence reports

have been made under Article 6 of the same Act as of the day on which the date of the national referendum is announced publicly, and prepare a pollbook within five days after the date of the national referendum is announced publicly.

Summary of the Decision

1. Whether the proviso of Article 15 Article 20 Section 4 of the Public Official Election Act that does not recognize overseas electors’ right to vote in an election of the National Assembly members of local constituencies due to the termination of the term of membership (hereinafter, the ‘Right to Vote Provision’) and the part of ‘whenever an election of members of proportional representation for the National Assembly due to the termination of the term of membership are held, any elector who intends to vote overseas shall file an application for registration of an overseas elector’ in Article 218-5 Section 1 of the Public Official Election Act (hereinafter, the ‘Overseas Elector Registration Provision’)’ violate overseas electors’ right to vote or the principle of universal suffrage.

A local constituency National Assembly member speaks for the interests of his/her constituency, and works as a representative of the people. In this regard, compared to the Presidential Election or election of proportional representation members for the National Assembly conducted nationwide for which Korean nationals are eligible to vote, local elections require prospective voters to have ‘connection with the specific locations’ where such elections are held. Requiring registration as residents and report of domestic residence for participating in local constituency National Assembly member elections is a reasonable means to certify the relevant people’s local connection. Therefore, the Right to Vote Provision and the Overseas Elector Registration Provision that do not acknowledge overseas elector’s right to vote for an election of members of proportional representation for the National Assembly due to the termination of the term of membership cannot be regarded as

infringing on the overseas elector’s right to vote or violating the principle of universal suffrage.

2. Whether the Overseas Elector Registration Provision that does not recognize the right to vote in the by-election of the National Assembly members violates the overseas elector’s right to vote or the principle of universal suffrage

The legislature, while establishing overseas election system, decided not to empower overseas electors to vote for the by-election of the National Assembly members, considering the facts that frequent by-elections held in Korea may place overseas electors in constant elections; it is expected that the voting rate of by-elections held in foreign countries would be low; and it requires tremendous time and expenses to conduct overseas by-elections because whenever the grounds for by-elections are confirmed, diplomatic missions in foreign countries should prepare for such elections. And the election system established by the legislature cannot be considered distinctively unreasonable or unfair. Therefore, the Overseas Elector Registration Provision does not violate overseas elector’s right to vote or the principle of universal suffrage.

3. Whether the Overseas Elector Registration Provision that requires overseas electors to file an application for registration whenever elections are held violates overseas elector’s right to vote

The method to make the electoral roll of overseas electors based on their application for registration is a reasonable way to prevent disorder in voting as it confirms overseas electors’ right to vote in a relevant election and to register overseas electors who have the right to vote in the electoral roll. Therefore, the Overseas Elector Registration Provision does not violate overseas elector’s right to vote.

4. Whether the part of Article 218-19 Section 1 and Section 2 of the Public Official Election Act that requires overseas electors to visit in person, not by mail or Internet, overseas polling places to case votes

(hereinafter, the ‘Overseas Voting Procedure Provision’) violates overseas electors’ right to vote

The legislators’ decision, in consideration of the fairness in election, the technical problems in election such as delivery of voting paper, effectiveness, etc., to opt for overseas elector’s personal visit to a overseas polling place in order to cast a vote, not by mail or internet, does not seem unacceptably unfair or unreasonable. Therefore, the Overseas Voting Procedure Provision does not violate overseas elector’s right to vote.

5. Whether the part of ‘eligible voters registered as residents in their jurisdictional area and those, as Korean nationals residing abroad under Article 2 of the Act on the Immigration and Legal Status of Overseas Koreans, whose domestic residence reports have been made under Article 6 of the same Act’ in Article 14 Section 1 of the National Referendum Act (hereinafter, the ‘National Referendum Provision’)’ violates overseas elector’s right to vote

A referendum on important national policy stipulated in Article 72 of the Constitution and a referendum on the amendment to the Constitution stipulated in Article 130 of the Constitution are the process in which citizens approve the decision of the National Assembly and the President. It is a logical conclusion that the subject of the right to elect representative organs also becomes the subject of the right to approve the decision of such representative organs. Since overseas electors, as the people with the right to elect representative organs, have also the right to approve the decisions made by the representative organs, overseas electors should be considered as the people with the right to participate in a national referendum. Also, different from elections, as a national referendum is a process where the people directly participate in national politics, those who are qualified as Korean nationals should be eligible to participate in referendum. As such, the exclusion of the right to participate in referendum, fundamentally derived from the status as Korean nationals, simply due to abstract danger or difficulties in election

technics, amounts to practical deprivation of the franchise endowed by the Constitution. Therefore, the National Referendum Provision infringes on overseas electors’ right to participate in referendum.

6.Decision of nonconformity to the Constitution regarding the National Referendum Provision

The instant nullification of the National Referendum Provision on the ground of the Court’s declaration of unconstitutionality will result in making it impossible to prepare for voter’s list even when a referendum is scheduled to be held. Therefore, tentative application of the National Referendum Provision is necessary until when the legislature amends the provision. Also, there are many problems to be solved in terms of technical difficulties in the referendum process and fairness of referendum. Therefore, the Court declares that the National Referendum Provision does not conform to the Constitution, but orders tentative application of the provision until the legislature cures the defects.

Summary of Partial Dissenting Opinion by Two Justices

Under the Constitution which adopts free delegation system, although the National Assembly members are elected within their relevant constituencies, they are also the ‘representatives of the people’, not legally bound by electors within their constituencies or directives of political parties. Although the National Assembly members of local constituencies are practically considered as local representatives in practice, they should not be jurisdictionally considered as mere local representatives. The possibility that some practical difficulties, such as choice of local constituency may be expected, cannot be the ground for denial of the right to vote itself, which is apparently contradictory to the representativeness of National Assembly members. Also, such a denial can bring about not only inequality in the value of vote but also inequality in the distribution of seats in the National Assembly, violating the principle of equality in election. As a result, the Voting Right

Provision and the Overseas Elector Registration Provision infringe on overseas electors’ right to vote.

Summary of Partial Dissenting Opinion by Three Justices

The only way for overseas electors to vote in foreign countries under the Overseas Voting Procedure Provision is to visit polling places in person located in foreign missions, which fails to effectively guarantee the right to vote of overseas electors who live in countries where no foreign missions exist or far from Korean embassies, if any. The vote-by-mail system enables such long distance voters or those who are unable to attend their polling places due to work commitment on Election Day to participate in elections. As such, even though it is possible to practically assure overseas electors’ right to vote while effectively preventing fraudulent election, the Overseas Voting Procedure Provision only allows overseas electors to visit polling places in person. This method clearly imposes excessive burden on overseas electors in exercising their voting right, thereby infringing the right to vote.

Summary of Partial Dissenting Opinion by Two Justices

A referendum is the process in which the people’s opinions and intention on the key issues under the Korean constitutional order are directly reflected and implemented: therefore, geographical proximity to the country can be a factor that limits the scope of right to participate in a referendum. As the subject matters of a national referendum including the important policies on diplomacy, national defense, unification and other matters relating to national security stipulated in Article 72 of the Constitution are areas that can cause conflict of interests with other countries, the degree of seriousness in terms of the need to participate in a national referendum would be different between those who have registered as Korean residents or reported their domestic domicile in Korea and those who settled down in foreign countries with permanent

residency. In order to reflect people’s genuine intention toward the constitutional amendment, it is possible to limit the right to participate in a referendum to those who live within the territory of Korea and reflecting geographical proximity in the constitutional amendment process is not necessarily unconstitutional. Therefore, the legislature’s decision to recognize the right to participate in a referendum only to people who registered as resident or reported domestic domicile is within the reasonable legislative discretion and in this regard, the National Referendum Provision does not violate the Constitution.