Ban on Local Government Heads' Mid-term

CandidacyCase

(11-1 KCCR 675, 98Hun-Ma214, May 27, 1999)

A.Background of the Case

In this case, the Court reviewed the Act on the Election of Pub-lic Officials and the Prevention of Election Malpractices provision that banned mid-term candidacy of local government heads in elections for other offices, and invalidated it for violating the heads' rights to holdpublic offices. The Court in the same case upheld another provisionof the same Act that limited publication and distribution of the liter-ature publicizing the activities of local self-governing entities.

Article 53(3) of the Act on the Election of Public Officials andthe Prevention of Election Malpractices bars the heads of local self- governing entities from candidacy to presidential, national assembly,local assembly, and other local government elections during their reg- ular terms even after they resign from their positions. Article 86(3)of the same Act limits publication of each informative literature onthe local self-governing entity's future plan or accomplishments to asingle publication for one type of literature in each quarter, and en- tirely prohibits publication of such literature during 180 days pre-ceding the election day. However, the provision allows unlimited in-formative publishing activities that are incidental to the regular oper-ation of the local self-governing entity, geared toward obtaining the consensus of the interested local constituents for a public project, or aimed at resolution of grievances.

The complainants are twenty two district heads who were electedin the 1998 Local Self-Government Officials Election and began serv-ing their four-year terms on July 1, 1998. They filed constitutionalcomplaints on June 26, 1998, against Articles 53(3) and 86(3) ofthe Act.

B.Summary of the Decision

The Court invalidated Article 53(3) of the Act in the following majority opinion of seven justices:

The legislative purposes of the concerned provisions are to pre-vent 'disruption in administration' that will arise out of local gov-ernment officials' candidacy in elections in the middle of their terms,and thereby promote the efficiency of local administration.

We, however, find the disruption in local administration causedby the local self-government officials' mid-term candidacy not seriousand remediable through alternative means such as pro-tems and va- cancy elections.

We now review whether the provisions' limitation on the rightto candidacy1)is justified by the legislative purpose of promoting thefairness of elections. The Act already provides for other sufficientmeasures aimed at promotion of fairness. Especially, Article 53(1)requires all prospective candidates to resign from their current posi- tions at least sixty days before the day of the election. The com- prehensive ban on candidacy in this case exceeds the extent neces- sary for accomplishment of the legislative purpose and therefore ex- cessively limits the complainants' right to candidacy.

On the other hand, the harm of the restriction on the right tocandidacy is extensive, and especially so on the realization of democ-racy. In principle, only when all people can register as candidates,and therefore voters are given the opportunity to choose from a mul-titude of candidates and platforms, the election can properly reflectthe political judgment of the people and thereby obtain democratic le-gitimacy. Also, the limitation on the voters' right to choose candi- dates can constitute substantial limitation on the right to vote itself, and sometimes eliminate it. We find no reasonable basis for the in-stant limitation on the right to candidacy and find it unconstitu-tional for violating the principle of common election in limiting thecomplainants' right to candidacy.

Justices Kim Yong-joon and Chung Kyung-sik dissented, findingthe statute constitutional to the extent of banning mid-term candi-

dacy for congressional or local assembly elections in the same elec-toral district as the local government head's jurisdiction, and cited thepossibility that the local government heads intending to run in thenext election can obstruct its fairness with 'pork barrel' politics and administrative bias.

The Court upheld Article 86(3) of the Act in the following un- animous decision:

State entities and local self-governing entities should not usetheir public functions to support or oppose a particular party or can-didate. They especially should not influence voters' decisions throughcampaign activities. If they do so, it violates the state's duty ofneutrality and the principle of equal opportunity. Biased interventionof a state entity in public officials' elections is not allowed even inform of informative publishing activities.

We first review the limitation on publication of informative liter- ature in the daysremote fromthe day of election. Informative liter-ature of a local self-governing entity, even if limited in content to theobjective information on the future plan and past accomplishmentsof that entity needed for the local residents, may cause positive pub- licity for the head of that entity. The instant provision recognizes in principle that the local self-governing entity has the need to publicizeits activities but at the same time that its frequent publicity on the en-tity's accomplishment will bring about favorable publicity for the headof that entity. Therefore, it limits such publication to once for eachtype of literature in each quarter.2)It does not constitute exces-sive limitation on the local government heads' freedom of expression.

We now review the limitation on publication of informative lit-erature in the daysclose tothe day of election. The closer to theelection, the greater influence the publicity will have on the outcomeof the election. In those periods, local self-governing entities havea more important duty to permit formation of the political opinion ofthe local residents free of intervention of public authority than to pub-licize its accomplishments. The instant provision's ban on any 'self-glorifying' publication of informative literature is not an excessivelimitation on freedom of expression where it allows informative pub-lishing activities incidental to the regular operation of the local self- governing entity.