Overseas Citizens Voting Rights BanCase

[11-1 KCCR 54, 97Hun-Ma253, etc.,(consolidated),

January 28, 1999]

A.Background of the Case

In this case, the Court upheld Article 37(1) of the Act on theElection of Public Officials and the Prevention of Election Malprac-tices1)that specified certain residential requirements for voting andthereby denied Korean citizens living overseas the right to vote. Thecomplainants are Korean citizens above twenty years of age who areliving in Japan. When they could not vote in the December 18, 1997presidential election due to lack of voting provisions for overseasKoreans, they filed a constitutional complaint against the above pro- vision.

B.Summary of the Decision

The Court unanimously upheld Article 37(1) of the Act on the Election of Public Officials and the Prevention of Election Malprac-tices as follows:

It is needed to impose residential requirements on voting rightsin order to protect the essential content of the voting right, the fair-ness in voting, and other public interests. Such requirements mayeffectively deny overseas citizens the right to vote. However, it isunrealistic to recognize the voting rights of North Korean citizensor other Japanese residents participating in the pro-North ChosunFederation ('jo-chong-ryeon') when the nation remains divided. Itis difficult to assure the fairness in voting once it is open to over-seas citizens. Also, it is practically impossible to deliver the election and candidate information, campaign, and send ballots to all overseasresidents, and retrieve them within the statutory election period.Furthermore, the right to vote is correlated to the duty to pay taxand serve in the military, and overseas residents have not performed these duties.

Therefore, the restriction on overseas residents' voting rights isnot only aimed at legitimate legislative purposes but also balanceswell the public interest served and the basic rights infringed by it.It is also an appropriate means to accomplish the end.

It will be ideal to grant all overseas residents voting rights and

thereby promote their national pride as Korean citizens, elevate theirlove of the country, and generate in their daily lives keener interestin the fate of the country. This issue of an ideal is different fromthe question of whether a restriction on voting rights necessarily vio-lates the Constitution. Even if it is undesirable to deny overseasresidents the voting rights, as long as there is a reasonable basis, such denial is not excessive restriction on basic rights. Therefore,the above provision does not depart from the Article 37(2) limit on restriction on basic rights.