3. Infringement of Right to Equality for Severely Disabled Candidates Running for Public Office

[21-1(A) KCCR 211, 2006Hun-Ma626, February 26, 2009]

Background of the Case

The Public Official Election Act (hereinafter, the "POEA") imposes a variety of restrictions on election campaign such as the number of political campaign staff and the election campaign method, and does not provide a separate provision that allows a candidate who or whose spouse is severely disabled to have additional personal assistants, other than campaign staff, who may distribute name cards.

The complainants, who are severely disabled candidates running for local office, filed this constitutional complaint, arguing that the contested provisions of the POEA infringe on their basic rights including the right to equality.

Provisions at Issue

POEA (revised by Act No. 7681, August 4, 2005)

Article 62 (Appointment of Persons in Charge of Election Campaign Affairs)

(2) In order to attend to the election campaign affairs, the manager of an election campaign office or the chief of an election campaign liaison office may appoint election campaign workers (referring to those who are paid allowances and actual expenses provided in the text of Article 135 (1); hereinafter, the same shall apply) from among those who are eligible to engage in an election campaign, as provided in the following items:

4. For an election of a local constituency City/Do council member

Not more than ten persons in the election campaign office

7. For an election of an autonomous Gu/Si/Gun council member of local constituency

Not more than eight persons in the election campaign office

Article 93 (Prohibition of Unlawful Distribution or Posting, etc. of Documents and Pictures)

(1) No one shall distribute, post, scatter, play, or run an advertisement, letter of greeting, poster, photograph, document, drawing, printed matter, recording tape, video tape, or the like which contains the contents supporting, recommending or opposing a political party (including the contains the contents supporting, recommending or opposing a political party (including the preparatory committee for formation of a political party, and the platform and policy of a political party; hereafter the same shall apply in this Article) or candidate (including a person who intends to be a candidate; hereafter the same shall apply in this Article) or showing the name of the political party or candidate with the intention of influencing the election, not in accordance with the provisions of this Act, from 180 days before the election day (the time when the reason for holding the election becomes final, in case of a special election) to the election day: Provided, That the same shall not apply to acts falling under any of the following items:

Summary of the Decision

1) Regarding the provisions of the POEA which place the same restrictions for severely disabled candidates as for non-disabled candidates in terms of the total number of campaign staff and the number of persons who can distribute campaign business cards, the Constitutional Court unanimously delivered a dismissal opinion on the grounds that there is no possibility for the provisions of the POEA to infringe on the complainants' basic rights including the right to equality.

2) Regarding the provision of the POEA which places the same restrictions for severely disabled candidates as for non-disabled candidates in terms of the election campaign method, four Justices presented an incompatibility opinion and one Justice presented a unconstitutionality opinion. This constitutional complaint, however, was denied for failure to meet the quorum requirement of six Justices to

uphold a constitutional complaint.

1. Decision to dismiss the constitutional complaint regarding the provisions of the POEA which place the same restrictions for severely disabled candidates as for non-disabled candidates in terms of the number of campaign staff and the persons who can distribute campaign business cards

A.The candidates in this case who are severely disabled definitely need to be assisted and helped by caregivers for conducting almost every activity including election campaign as their physical condition prevents them from willingly moving by themselves. The assistants or caregivers are the ones dedicated to wait on them hand and foot, providing close and personal assistance to physical activities of the severely disabled candidates and their roles and responsibilities are clearly different from those of the political campaign staff stipulated in the provisions of the POEA. Due to the inherent difference in their job descriptions, it is impossible for the assistants or caregivers to be included in the category of political campaign staff. Therefore, the complainants who are severely disabled candidates can get help from assistants regardless of the limitation imposed by the provisions of the POEA on the number of campaign staff. For the foregoing reasons, the Court decided that the uniform restriction subscribed in the provisions of the POEA against both disabled and non disabled candidates on the number of campaign staff did not violate the complainants' basic rights such as the right to equality.

B.It is physically impossible for a candidate or a candidate's spouse who is severely disabled to distribute business cards to electors in person during campaign period. Therefore, it is easily expected that assistance from a caregiver in distributing business cards for such a candidate/spouse is indispensable. In this regard, the distribution of business cards by caregivers to electors should be considered equivalent to that by a disabled candidate or a disabled spouse himself/herself. Therefore, although there is no specific provision in the POEA that allows a severely disabled candidate or a spouse to 'get help from a personal assistant or caregiver in distributing

campaign business cards', it is naturally inferred from the situation that such an assistant should be accompanied for them. As such a personal assistant or caregiver is interpreted to be included in the category of those who can distribute business cards in the run-to the election, the provisions of the POEA do not infringe on the complainants' basic rights including the right to equality.

2. Decision to deny the constitutional complaint regarding the provision of the POEA which places the same restrictions for severely disabled candidates as for non-disabled candidates in terms of the election campaign method

A.Regarding Article 93 (1) of the POEA which imposes limitation on the campaign method (hereinafter, the "Instant Provision"), the alleged violation of the right to equality seems to be incurred not by exclusively prohibiting severely disabled candidates from mounting certain types of election campaign, but by treating severely disabled candidates and non-disabled candidates all the same. Therefore, the standard of review for this facially neutral provision should be the rationality test.

In the phrase "everyone is equal under the law", equality means prohibition of unequal treatment under the law, and does not necessarily mean that every socio-economic inequality should be corrected and everyone should be treated absolutely equal in any case. Therefore, it is hard to say that the facially neutral provision that does not treat the candidates with speech impediments differently from non-disabled candidates, thereby creating de facto discrimination against the disabled candidates, clearly violate the principle of equality.

Although the candidates with speech impediments cannot directly and personally communicate with their electors and canvass a district for votes, there are some types of election campaign method which can be used by them, such as publishing advertisements and campaign address in newspapers, on television, radio or the internet. Moreover, those new methods are gaining greater influence in modern society. Also, as the magnitude and scope of "oral" statements by a candidate himself/herself in an election campaign is relatively small and narrow except for having personal conversations with electors, the verbally

disabled candidates may not be so much disadvantaged in terms of "oral" communication because they can communicate through the help of their agents such as campaign staff, volunteers or personal assistants who can meet the individual electors and canvass a district for votes in lieu of them. In this light, allowing the verbally disabled candidates to use more campaign methods such as additional documents, voice or video recordings than those stipulated in the POEA does not necessarily ensure a level playing field for them, nor does the preference, if any, seem to be remarkably helpful even if such additional methods are allowed. Therefore, although the Instant Provision puts uniform limitation on the campaign methods against both severely disabled candidates and non-disabled candidates, it seems far-fetched to state that the Instant Provision arbitrarily omits to provide different treatment to those who are clearly in de facto disadvantage, thereby violating the complainants' basic rights including the right to equality.

Of course, it is worth considering granting preference to disabled candidates with speech impediments, such as allowing them to distribute more written documents to their electors than candidates without disabilities, in order to alleviate the de facto inequality. But granting additional campaign methods exclusive to the verbally disabled candidates requires another law that regulates criteria for evaluating the degree of speech disorders of the disabled candidates and for the types and quantity of additional documents to be allowed for them, which would be very difficult to be enacted given both the legislative technique and reality.

B. Opinion of Incompatibility with the Constitution of Four Justices

As the Instant Provision brings about grave limitation on the exercise of the basic right of freedom of election campaign, we need to review this case on the basis of the principle of proportionality.

The verbally disabled candidates are definitely at disadvantage in terms of communicating their political views and policies to electors and appealing for support as they cannot clearly deliver their message and intention due to their speech disorders. Moreover, even for those who have a certain degree of communicative competence, the prejudice

or hostility of some electors toward the ways the verbally disabled or deficient candidates communicate, including their speaking attitude or pronunciation, would become a stumbling block that is hard to be overcome for them. Given the lasting importance of traditional campaign method of face-to-face communication and interaction with electors, it is suffice to say that the general situation in election campaign is clearly far less favorable to verbally disabled candidates than to non-disabled candidates. Accordingly, there should have been a legal measure suited to level the playing field for the disabled candidates by providing them with extra campaign methods that can be effective substitutes for verbal communication, such as allowing them to have one or two more campaign staff who can assist them to have smooth communication with electors in addition to the number of staff fixed in the POEA, or extending the upper limit on the volume of campaign literature stipulated in the POEA. The facially neutral Instant Provision imposing uniform restriction on the campaign methods against both disabled and non-disabled candidates finally resulted in creating de facto discrimination against the disabled candidates due to the failure to consider the difference between them,thereby breaking the balance between the legislative purpose (guaranteeingthe real freedom and fairness in election) and the means to achieve the purpose (imposing restriction on campaign methods), in violation of the complainants' right to equality.

But, considering that the declaration of "simple" unconstitutionality which instantly nullifies the existing restrictions on the campaign methods for both disabled and non-disabled candidates can bring about confusion and disorder by making it possible for all the candidates to arbitrarily use any types of campaign methods at will, we decide to deliver a decision of incompatibility with the Constitution regarding the Instant Provision and ask the legislators to revise the law in order to remove the constitutional defect.

C. Unconstitutionality Opinion of One Justice

The campaign method using campaign literature, books or booklets, which is known for the most effective way to give electors information about a candidate, must be constitutionally protected as

freedom of political expression. Such a campaign method is cost effective and seldom undermines the fairness of elections even without imposing limitation on the quantity of documents to be distributed and the frequency of distribution of such documents. As the POEA sets the expenditure ceiling for an election campaign, a candidate should be given a free rein in choosing types of campaign methods as long as his/her campaign expenditure does not exceed the boundary of the legally prescribed maximum. In this regard, the Instant Provision of the POEA which places restriction on the election campaign using campaign literature or books should be declared unconstitutional as it fails to prove legitimacy of the legislative purpose and places excessive restriction on the candidates' freedom to campaign in elections.