Local Government Election Postponement case,

6-2 KCCR 176, 92Hun-Ma126, August 31, 1994

A. Background of the Case

This case would have questioned unconstitutionality of the presidential measures postponing the first local government heads election ever in our history; but was dismissed because a statute was enacted during the review to justify the postponement, eliminating the justiciable interests.

The National Assembly revised the Local Autonomy Act on the basis of Article 118 (2) of the Constitution and set the date of the first election of local government heads as December 30, 1991 (1989. 12.30. Act No. 4162) and later revised again to change the date to December 30, 1992 or earlier (1990.12.30. Act No. 4310).

Then, when some members of the media and business advocated further postponement, citing the likelihood of economic instability and social confusion accompanying the election, the respondent President Roh Tae-woo announced at the 1992 New Year Conference that he postponed the election to 1995 or later, and that he would discuss the appropriateness of this action at the 14th National Assembly.

Afterwards, 14th National Assembly Election was held on March 24, 1992. Because a preliminary negotiation on whether to conduct the local government heads election stalled, the 14th National Assembly did not even open its regular session. In the meantime, the Administration submitted to the Assembly a bill postponing the election to June 30, 1995 or later, and passed the June 12, 1992 statutory deadline to announce the date of the election.

At that point, fifty nine petitioners who were planning to run or vote in elementary or regional local government heads election filed a constitutional complaint claiming that their right to vote and to hold public offices (right to be elected) was violated when the government failed to announce the date of the election by June 12, 1992, as required by the then effective statutes, i.e. the Local Autonomy Act (amended by Act No. 4741 on March 16, 1994) Supplement Article 2 (2), the Election of the Heads of Local Governments Act (repealed by Act No. 4739 on March 16, 1994) Article 95 (3) and its Supplement Article 6.

At the same time, a group of other complainants composed of individuals and political organizations like the Reunification National Party also filed complaints challenging the non-announcement of the date of election, and the postponement of or the omission to hold the election (92Hun-Ma122, 92Hun-Ma152, 92Hun-Ma174, 92Hun-Ma178, 92Hun-Ma184).

B. Summary of the Decision

The Court dismissed the case on the grounds that the changes in the relevant statutes during their constitutional review extinguished the legally protected interests related to the postponement of the local government heads election.

While the case was pending, the National Assembly set up the Political Relations Laws Special Review Committee and sought to remedy the omission politically. On March 4, 1994, the Plenary Session of the National Assembly passed the Act on the Election of Public Officials and the Prevention of Election Malpractices Act as well as the revisions to the Local Autonomy Act and the Political Fund Act on a bipartisan agreement. The respondent signed them into effect on March 16. The amended Local Autonomy Act specified the postponement to June 30, 1995 or earlier in its Supplement 2. The new Act on the Election of Public Officials and the Prevention of Election Malpractices Act abolished advance announcing of election dates and instead fixed them statutorily (Articles 34 or 36, Supplement Article 2 and 7 (1)). As a result, the state of the respondent's violation of the old law by failing to announce the date of election was extinguished (by revision of that law).

However, even if the changes in law or fact during the review extinguished legally protectable interests, a justiciable interest would be exceptionally recognized for those violations of basic rights that are likely to repeat or for those disputes, resolution of which are vital to defense of the constitutional order. The repeatability is not an abstract or theoretical possibility but a concrete and real possibility (89 Hun-Ma 181, July 8, 1991; 92 Hun-Ma 98, March 11, 1993; 91 Hun-Ma 137, July 29, 1994). The importance of constitutional resolution means a lasting constitutional importance. In this case, advance announcements are abolished and election dates are statutorily fixed; therefore, there is neither repeatability of no-announcements nor importance of constitutional clarification. Hence no justiciable interest.

Justices Cho Kyu-kwang, Kim Chin-woo, Choe Kwang-ryool, and Lee Jae-hwa added their concurring opinions as follows: since Article 118 (2) of the Constitution leaves the methods of selecting local Government heads to statutes, and therefore, does not commit itself to direct election, rights to vote and run in local government heads elections are merely those rights created by statutes (Justices Cho Kyu-kwang and Kim Chin-woo). The respondent's duty to announce the election date is also defined statutorily by the former Local Autonomy Act and the former Election of the Heads of Local Governments Act and not is a constitutional duty. Therefore, when they filed the complaint before the date of election, before they had constitutional right to demand an election, the complainants did not satisfy the legal prerequisites to complain of unconstitutional omis- sion (Justices Choe Kwang-ryool and Lee Jae-hwa).

Justices Byun Jeong-soo and Kim Yang-kyun dissented as follows: it can easily be derived from Articles 24, 25 and 118 (2) of the Constitution and the essence of local autonomy that the representative of a local government should be elected by the willing support of the locals. Therefore it is a constitutionally guaranteed basic right. The respondent's duty to enforce the statute is also pursuant to Articles 66 (4), 69 and 118 (2) and the complainants' right to run and vote in elections are subjective rights. The complainants had right to demand the election at the time they did. Furthermore, the prerequisite repeatability of the same violations should be measured by repeatability of the president's disruption of the legal order or failure to discharge his statutory duty. Also, the importance of constitutional resolution is immediately recognized upon a showing of possibility of basic rights violations. The complaint met the justiciability requirements.

C. Aftermath of the Case

Some in the press criticized the decision for its tardiness the fact that it took two years and two months only to get a dismissal.

However, when the complaint was filed, the Court, while seriously examining the constitutional issues involved in it, awaited an appropriate resolution to be reached in the National Assembly in consideration of its polity-making privilege and role. The National Assembly answered the call by forming the Special Committee as mentioned above, arranging the timing of the election through a series of negotiations and adjustments, and thereby producing a revised statute that provided for the election on June 27, 1995. Hence was the significance of the decision.

After such a process, the first local government heads election ever in our history took place on June 27, 1995 where the fifteen heads of regional local governments and two hundred thirty heads of elementary local governments were directly elected.