Prohibition against Election Campaign Planning of Public Officials

[20-1(B) KCCR 270, 2006Hun-Ma1096, May 29, 2008]

In this case, the Constitutional Court decided that the application of Article 86 Section 1 Item 2 of the Public Official Election Act, which bans the "act of participating in the planning of an election campaign or in the implementation of such planning" of public officials, even to public officials who do not take advantage of their positions infringed upon the freedom of political expression and equality rights, and thus violated the Constitution.

Background of the Case

The complainants have been serving as heads of Gu (ward)/Gun (country)/Si (city) in their respective municipalities from July 1, 2006 since their election in the nationwide local elections on May 31, 2006. Newly elected as the heads of local government offices, the complainants are able to serve up to three consecutive terms under the Local Autonomy Act, which allows them to run for their next term of office while maintaining their current status. However, Article 86 Section 1 Item 2 and Article 255 Section 1 Item 10 of the Public Official Election Act (hereinafter the "Provisions") prohibit public officials' act of participating in the planning of an election campaign or in the implementation of such planning and, if violated, imposes prison term of not more than three years or fines not exceeding 6 million Won. Contending that the Provisions infringe their basic rights, the complainants filed this constitutional complaint to the Constitutional Court on September 26, 2006.

Summary of Decision

In an opinion of 6 (limited unconstitutionality) to 1 (limited unconstitutionality) to 2 (constitutionality), the Constitutional Court decided that applying the Provisions concerning this case even to acts which do not involve taking advantage of public official status violates the Constitution The reasoning is as below.

1. Majority Opinion of 6 Justices

A. Whether principle of clarity derived from the principle of nulla poena sine lege is violated

The "act of participating in the planning of an election campaign or in the implementation of such planning" prescribed in the Provisions concerning this case implies an act that affects elections either by engaging in overall planning for efficient election campaigns of public officials or by directly implementing or directing and supervising thereof. In fact, a person with sound common knowledge and general legal awareness would distinguish who would be subjected to and specifically what kind of act is prohibited by the Provisions concerned. In that sense, although the Provisions contain elements of some ambiguities such as "election campaign", "planning", and "participating", this alone cannot be seen as a violation of the principle of clarity derived from the principle of nulla poena sine lege stipulated in the Constitution.

B. Whether freedom of political expression is infringe

The Provisions completely prohibit the public officials' act of participating in the planning of an election campaign or in the implementation of such planning in order to ensure fair election by strictly blocking the possibility for the government or persons in public office to intervene in elections. However, if the objective is to fulfill public officials' obligation for impartiality in elections by restricting unjust exercise of influence or other acts affecting election results with the view to ensure fair election, the purpose is sufficiently served solely by stopping the public officials from "abusing their status" in planning election campaigns. The Provisions, for this reason, do not conform to the tests of adequate means and least-restrictive means.

Meanwhile, the public interest of ensuring fair election by excluding public officials' exercise of biased influence may mostly be achieved merely through the ban on election campaigns which involve abuse of public official status or influence peddling. Therefore, although a

uniform prohibition against all kinds of election campaign planning regardless of whether the abuse of public official status took place or not significantly restricts the individual basic right of freedom of political expression, such a restriction barely contributes to securing the public interest of fair election. In that sense, the Provisions do not meet the test of balancing of interests.

The Provisions, therefore, infringe the freedom of political expression of public officials. However, because such unconstitutionality stems from comprehensive restriction that even includes the prohibition against the act of election campaign planning conducted in the private position as well as that against such act by public officials "taking advantage of their positions", the Provisions conflict with the Constitution in case it is applied even to acts not involving the abuse of position by public officials.

C. Whether right to equality has been infringed

Restricting public officials from abusing their position in the act of election campaign planning aims to guarantee fair election, so it has reasonable grounds to discriminate between candidates who are public officials and those who are not, between the heads of local governments, National Assembly members and their advisors, secretaries, assistants and members of local councils. However, equally restricting the act of election campaign planning carried out in the private position without abusing their position as public officials cannot be viewed as a rational discrimination for the legislative purpose of securing fair election, and thus infringes the right to equality.

2. Separate Opinion of Limited Unconstitutionality by One Justice

In case a public official is able to run for office while maintaining his/her position as a public official under the proviso of Article 53 Section 1 of the Public Official Election Act, the act of election campaign planning for one's own candidacy by such a candidate or a public official willing to be one (hereinafter the "Candidate as Public Official") should rightfully be permitted under Article 58 Section 1

Item 2 of the Public Official Election Act as "an act of preparing for candidacy and election campaign".

Act Candidated as Public Official of election campaign planning for his/her own election does not constitute an act of election campaign, but rather an act of preparing for his/her election campaign.

Therefore, applying the Provisions in cases of Candidates as Public Officials infringe the right to hold public office, and thus runs counter to Article 25 and Article 37 Section 2 of the Constitution.

3. Dissenting Opinions of Constitutionality by Two Justices

The public officials' act of election campaign planning ultimately aims to efficiently perform election campaigns of a specific candidate, and such act may affect the result of elections. Therefore, it is of natural consequence to restrict such acts of public officials for the purpose of ensuring fair and equitable election as well as work commitment of public officials.

The majority opinion directs toward allowing the act in the Provisions even to public officials whose election campaigns are restricted with the exception for cases where public officials "take advantage of public official positions". It is questionable whether public officials' act specified in the Provisions can be viewed as a genuinely private act, and even if there are acts deemed as such, it is not easy to judge whether public officials took advantage of their positions or not, which means the permit of election campaign planning aside from that "taking advantage of positions" will also allow the act in the Provisions to all public officials regardless of their abuse of public official position. Therefore, in order to ensure fair election, it is necessary to restrict all the acts, such as engaging in planning of election campaigns, irrespective of whether or not public officials abused their positions. The Provisions, for this reason, cannot be seen as infringing upon the freedom of political expression.

Meanwhile, National Assembly members and local council members, owing to their positions as representatives of political parties and the main actors of election campaigns, cannot be demanded of political impartiality in elections. In contrast, the heads of local governments are highly inclined to take advantage of their function of duties or

influence to affect the formation of public opinion and distort competitive relationship in elections, so the position particularly demands more political impartiality than other types of public officials. Although the Provisions do not exclude from its application the heads of local governments who are required of strict political impartiality while excluding the National Assembly members and local council members, this distinction stems from the extent of how much political impartiality is required in elections and thus is not an arbitrary discrimination. Therefore, this is compatible with the principle of equality.

Related Decision

The decision of this case overrides that of case 2004Hun-Ba33 (declared on June 30, 2005), which held constitutional Article 86 Section 1 Item 2 and Article 255 Section 1 Item 10 of the old "Act on the Election of Public Officials and the Prevention of Election Malpractices (revised by Act No. 7189, March 12, 2004)" that contains the same contents as the Provision, for the parts that conflict with the decision of this case.