Election Campaign by Spouse of Preliminary Candidate

[25-2(B) KCCR 473, 2011Hun-Ma267, November 28, 2013]

In this case, the Constitutional Court of Korea held that Article 60-3(2)(c) of the Public Official Election Act discriminates against preliminary candidates who do not have a spouse and thus infringes on the right to equality in violation of the Constitution. The provision allows one person who is designated by the spouse of a preliminary candidate, among persons accompanying the spouse, to conduct election campaigns for the preliminary candidate by handing out the candidate's name cards or appealing for support.

Background of the Case

1.The complainant was preparing to register as a preliminary candidatefor member of the OO District Council of Seoul in the re-election and by-election of October 26, 2011.

2. Article 60-3(2)(a) of the Public Official Election Act prescribes the scope of persons who can independently hand out the candidate's name cards or appeal for support to include only the spouse and the lineal ascendants or descendants of the preliminary candidate. Article 60-3(2)(c) of the same Act permits one person who is designated by the spouse among the persons accompanying the spouse to hand out the candidate's name cards or appeal for support. The complainant filed this constitutional complaint on May 17, 2011, arguing that the provisions violate the rights to equality and freedom of occupation of thecomplainant who does not have a spouse or any ascendants or descendants.

Provision at Issue

The subject matter of review is whether Article 60-3(2)(a) of the Public Official Election Act (amended as Act No. 9974 on January 25,

2010; hereinafter “Provision (a)”) and the part related to ‘spouse’ in Article 60-3(2)(c) of the same Act (hereinafter “Provision (c)”) infringe on the complainant's fundamental rights. The contents of the provisions are as follows.

Public Official Election Act (amended as Act No. 9974 on January 25, 2010)

Article 60-3 (Election Campaigns by Preliminary Candidates, etc.)

(2) Any one falling under any of the following subparagraphs may hand out name cards of a preliminary candidate or appeal for support from voters under paragraph (1)(b), in order to conduct an election campaign for a preliminary candidate:

a. Spouse and lineal ascendants or descendants of a preliminarycandidate;

c. One person designated each by a preliminary candidate or by the spouse thereof, from among persons accompanying a preliminary candidate or the spouse thereof.

Summary of the Decision

1. Judgment on Provision (a)

The Constitutional Court of Korea has already decided on Provision (a) on August 30, 2011 that it does not infringe on the freedom of election campaign or the right to equality. As no further constitutional clarification on the provision is necessary, the complaint on the provision lacks justiciable interest and thus is inadmissible.

2. Whether Provision (c) violates the principle of equality

A preliminary candidate who does not have a spouse is already in a disadvantageous position in election campaign because of Provision (a). Provision (c) exacerbates the discriminatory effect on the basis of

whether the person has a spouse by allowing the spouse to designate one person among people accompanying the him/her to hand out the candidate's name cards or appeal for support.

The fact that Provision (c) does not impose any restrictions on the scope of persons who may be designated by the spouse among those people accompanying the him/her is consistent with neither the essential function of the name cards nor the legislative purpose of Provision (a), which allows only the spouse or the ascendants or descendants to hand out the name cards. If the preliminary candidate is an incumbent member of the National Assembly or an influential person of great eminence, the imbalance among the preliminary candidates in scouting election campaigners would be intensified depending on their political and economic power. Such result is also against the intent of the preliminary candidate system which is to expand the opportunities for participation and publicity of new political figures.

Moreover, the fact that a preliminary candidate who does have a spouse, unlike one who does not, may enjoy the effect of designating one additional independent election campaigner violates the principle of equal opportunity in election campaign under Article 116(1) of the Constitution.

The provision above, while strengthening election campaign for preliminary candidates, violates the complainant's right to equality by its differential treatment between a preliminary candidate who has a spouse and one who does not without any justifiable reason, on the ground of the fortuitous circumstance whether or not the person has a spouse.

Dissenting Opinion of Two Justices

The decision of whether Provision (c) is unconstitutional should be made by focusing on the freedom of election campaign to ensure, to the

maximum extent possible, that people in principle freely participate in the election process and exercise their right to political suffrage.

According to the history of amendments of the Public Election Official Act, the above provision was introduced in the process of gradually expanding the freedom of election campaign in public official elections and was not intended to cause differential opportunities in election campaigns. And it is unclear if allowing one election campaign assistant to hand out name cards and appeal for support only in cases where he or she is accompanying the spouse of the preliminary candidate, would cause the harmful effect of the election campaign becoming overheated at an early stage or increase the use of paid campaigners.

The majority opinion merely supports fairness in the sense of formality, disregarding the meaning of the constitutional mandate that sets forth freedom of election campaign in principle and allows restriction as an exception on the ground of public interests. Such a downward standardization of freedom and rights does not comport with the essence of constitutional adjudication to advance the protection of fundamental rights.

Even if the situation becomes effectively disadvantageous in election campaigns for the preliminary candidates who do not have a spouse, the resolution to the problem should be to remedy the situation by legislation and cannot be the reason to decide that the provision above, which protects and confirms the freedom of election campaign, infringes on the complainant's right to equality.