The Requirement of Twenty-Five Years of Age or Above to be Elected as Assemblyperson Case

[17-1 KCCR 547, 2004Hun-Ma219, April 28, 2005]

In this case, the Court found constitutional the contested relevant provision of the Public Official Election Act, which limits the right to be elected as an assemblyperson to nationals twenty-five years of age or above.

Background of the Case

The Public Official Election Act grants the right to be elected as assemblyperson to only nationals twenty-five years of age or above as of election day. Therefore, the complainants who are under twenty-five years of age were unable to register as candidates in the election of assemblypersons. The complainants filed the instant constitutional complaint, asserting that the contested provision infringe the right to equality and the right to hold public office by granting the right to be elected as an assemblyperson only to nationals twenty-five years of age or above.

Summary of Decision

The Court issued a decision to deny the complaint finding the Provision at issue constitutional with the unanimous opinion of all Justices for the following reasons.

A.The right to be elected as an assemblyperson is a right to become a candidate in the election for assemblyperson and to be elected. To whom and with what qualifications this right will be granted should be decided as a matter of policy by the legislature, which should comprehensively consider various elements such as the status and authority of an assemblyperson, political awareness and education level of the people, political culture, public economic conditions, public legal sentiment, and the relevant legislative precedents of other major countries in the world.

When the requisite age to exercise the right to be elected is set at too high an age, even nationals who have sufficient intellectual and political ability and quality are unable to participate in the election and become elected as assemblypersons. Therefore, there is a constitutional limit in setting the qualified age to exercise the right to be elected, in that there should be balance and harmony between the public interest to be attained and the restriction on basic rights. Nevertheless, if the actual age criterion set by the legislature is not too high or irrational-fitting into the realm and limit of legislative discretion, it cannot be easily concluded as unconstitutional.

B.Under the government order of representative democracy, the power to create representatives and the power to make policies are divided, and the latter is freely delegated to the representative agency. Therefore, the following matters should be considered in setting the age criterion: the need to secure professionalism at representative agencies due to the enlargement and complexity of national functions; the demand for enhanced representative ability and political cognitive ability due to an assemblyperson's change in status and expansion of authority; and, the minimum time required to finish formal or informal educational courses and to obtain direct or indirect experience needed to acquire such ability and quality. Considering such matters, we reach a conclusion that the provision on review, which sets twenty-five years of age or above as the qualified age to exercise the right to be elected as an assemblyperson, is within the realm and limit of legislative discretion. Therefore, the provision on review cannot be seen as excessive to the degree of violating the essential aspect of the complainants' basic rights such as the right to hold public offices.