Prohibition ofPolitical Party Membership ofPrimary and Middle School Teachers

(16-1 KCCR 422, 2001Hun-Ma710, March 25, 2004)

Held, the relevant provisions of the Political Parties Act and the former Act On the Election of Public Officials and the Prevention of Election Malpractices, as revised on August 5, 2005 as the Public Election Act prohibiting the political party membership and the election campaign activities of the primary school and middle-school

educational civil servants are constitutional.

Background of the Case

The complainants are the public officials who are teachers at middle-school. The complainants intended to conduct election campaign activities by becoming the members of a political party for the election of the members of the local legislature and the head of the local government that took place on June 13, 2002. However, they were not able to conduct election campaign activities due to the statutory provisions at issue in this case prohibiting the political party membership and the election campaign activities of the general public officials with the exception of the university professors and certain others. The complainants thereupon filed the constitutional complaint in this case, claiming that their freedom of political expression, freedom of political party membership and party activities, freedom to conduct election campaigns and the right to

equality had been violated.

Summary of the Decision

The Constitutional Court dismissed the constitutional complaint on its merits in the unanimous opinion of the justices, holding that the provisions at issue in this case are not in violation of the Constitution. The summary of the grounds for the Court's decision

is stated in the following paragraphs.

1. First, Section 1 of Article 7 of the Constitution provides that "All public officials shall be servants of the entire people and shall be responsible to the people," thereby clearly indicating that the public officials are in the position to serve the interest of the entire citizenry and not in the position to serve the interest of particular sections of the citizens or a particular political sector or political party. Section 2 of Article 7 of the Constitution provides for the

"political neutrality of the public officials" so that the consistency and continuance of the administration will not be deprived by the change of the political powers and the administration will not be depended upon the political beliefs of the public officials, by expressly providing that "The status and political impartiality of

public officials shall be guaranteed as prescribed by Act."

Second, Section 4 of Article 31 of the Constitution declares that "political impartiality of education shall be guaranteed under the conditions as prescribed by Act." thereby institutionally guaranteeing the political neutrality requested for the public officials upon the educational civil servants serving in the area of education. The political neutrality of education means not only that the education should be free from unjust interferences from state authority or political power, but also that education should not intervene in the realm of politics in deviation from its original or primary function. The ground for the Constitution's request of the "political neutrality of education" is that it is desirable to keep a certain distance between education and politics, as education is in its essence in pursuit of ideals and not prone to power, while

politics seeks reality and power.

Third, it is true that the political fundamental right of the complainants is restricted by the prohibition of the freedom of political party membership and election campaign activities of the teachers of primary school and middle-school in the entirety including off-duty hours. However, the impact of the political activities of the teacher upon the students at primary school and middle-school who are fully sensitive, imitative and receptive is massive; the activities of the teacher over both on-duty and off-duty hours constitute part of the potential education process significantly affecting the formation of the personality and the basic life-style habits of the students; and the political activities of the teacher might infringe upon the right to learn in class from the perspective of the students who are the beneficiaries of the education. Considering in totality that the priority should be given at the current point to the public interest that may be achieved by further guaranteeing the fundamental right of education of the citizens, the restriction of the freedom of political party membership and election campaign activities of the primary school and middle-school educational civil servants is constitutionally

justifiable.

2. The current education law provides that the teachers at the primary school and the middle-school are to educate the students, while the teachers at the college and the university are to educate and guide the students and to conduct research and learning while

they may exclusively concentrate on research and learning, thus differently regulating the tasks of the two. In addition, compared with the education at primary school and middle-school which focuses on the delivery of the generally recognized basic knowledge, the education at college and university needs to advance science and learning and to heighten the quality of education for college and university students by organically combining research and activities of learning and the inculcation function, which therefore requires that the capability to perform such functions is needed for the qualification of college and university professorship. Then, even if the freedom of political party membership and election campaign activities is prohibited from the primary school and middle-school teachers while permitted to the college and university professors, this is a reasonable discrimination considering the difference in the essential nature and content of the tasks and the mode of

employment, thus not in violation of the right to equality.