Election Campaign Participants Limitation case

[6-2 KCCR 15, 93Hun-Ka4, etc., July 29, 1994]

A. Background of the Case

This case struck down the former Presidential Election Act (hereafter "PEA") which inclusively and generally prohibited election campaigns.

Article 34 of PEA (discontinued by Law No. 4739 on March 16, 1994) allowed campaigning between candidacy registration and the day before the election. Article 36 (1) prohibited all from participating in campaigns except political parties, candidates, campaign managers, campaign liaison office heads, campaign staffs or speakers, thereby inclusively limiting the scope of permissible campaign participants.

Claimant A was being prosecuted at the Seoul District Criminal Court on the charge of speaking in support for Kim Yeong-sam, then the candidate for the Democratic Liberal Party, during a dinner with local agency chiefs at a blow fish stew restaurant in the Pusan area sometime in December 1992. Claimant B was being prosecuted at the West Branch of the Seoul District Court also for violation of PEA. The Seoul District Criminal Court, upon Claimant A's motion, referred the case to the Constitutional Court for review of Article 36 (1) of PEA and its punitive clauses in Article 162 (1) (ⅰ). The West Branch of the Seoul District Court, upon Claimant B's motion, referred the case to the Constitutional Court for review of Article 34 of PEA.

Incidentally, during the review of this case, the Act on the Election of Public Officials and the Prevention of Election Malpractices (Act No. 4739) was enacted and took effect on March 16, 1994, supplanting the old Presidential Election Act. Its Articles 58 (2) and 60 (1) allow all to freely participate in election campaigns and enumerate those who cannot.

B. Summary of the Decision

The Constitutional court struck down Article 36 (1) of EPA and its punitive provisions that comprehensively barred the general public from participating in election campaigns, and upheld Article 34 and its punitive provisions that limited the allowed period of election campaign activities for the following reason:

A citizen's participation in elections is an exercise of his sovereignty or his right to political participation, and therefore, in principle, must be unhindered and guaranteed to the utmost. However, since some restrictions are inevitable to secure the fairness of election, freedom of election campaign can be limited according to Article 37 (2) of the Constitution. The legislature must skillfully harmonize freedom and fairness.

The concept of 'election campaigns' used in Articles 36 (1) and 34 of PEA is defined in Article 33 as 'acts making a candidate to be elected or to not be elected'. Despite its ambiguity and lack of clarity, this concept can be understood in light of the legislative intent and the overall structure of the statute, and clearly distinguished from simple expression of opinions. Then, the culpable act requires the specific intent to gain votes or win elections, the objective indicia of such intent, an affirmative act, and premeditation. Since ordinary people can make such distinction, it does not violate the clarity required by the principle of nulla poena sine lege.

Article 34 of PEA limiting the permitted period of campaign to after candidacy registration and the day before the election day has reasonable bases and does allow between twenty three and twenty eight days. Considering the pervasiveness of the mass media and the means of transportation bringing every part of the country within a day's trip, such period is not excessively restrictive in view of the Constitution.

However, Article 36 (1) allows only "political parties, candidates, campaign managers, campaign liaison office heads, campaign staffs or speakers" to participate in campaigns, and does not allow ordinary people, despite their right to vote. This constitutes excessive restriction on people's freedom to participate in election campaign, stepping over the permissible boundary of the legislature's policy-making privilege, and violates Articles 21 (freedom of expression) and 24 (right to vote) as well as the principles of people's sovereignty and free election enshrined in the Constitution. In other words, the core content of regulations aimed at fair election should be regulation of election fund, intervention of public authorities or financial influences, blackmailing, and false rumors, not a comprehensive and total ban on ordinary people's campaign activities. Furthermore, PEA does not allow any campaign activity other than those defined in the statute; it provides detailed regulation for each one of those defined, as well as many penalties for acts damaging the fairness of election. In light of these regulations sufficient to accomplish the fairness by themselves, the comprehensive ban is beyond the necessary minimum. The public interest in fairness of election does not justify sacrifice of

freedom of political expressions and right to political participation implicated in election campaign. The new Act on the Election of Public Officials and the Prevention of Election Malpractices in principle allows all to participate in campaign in its Articles 58 (2) and 60 (1), and enumerates those prohibited such as public employees in a concrete and limited fashion. Upholding the spirit of the new law, we find any ban on those not listed by Article 260 (1) of the new law unconstitutional.

Justices Kim Chin-woo and Han Byung-chae dissented, upholding Article 36 (1); and the concurring Justice Byun Jeong-soo opined that the presidential election carried out under the PEA would lose its democratic legitimacy.

C. Aftermath of the Case

Having established basic and important judicial positions on the constitutional significance of and justification and limit for regulation on election campaign and its concept, this decision became a guiding precedent providing a standard of review and a direction for the later cases on the Act on the Election of Public Officials and the Prevention of Election Malpractices. The later cases all upheld the statute emphasizing the question of harmony between freedom to participate in election campaign and the fairness of election:

95Hun-Ma105 on Article 87 (prohibition of election campaign by organizations) on May 25, 1995;

94Hun-Ma97 on Articles 59 (the period of election campaign) and 112 (2) (ⅱ) (definition of donation and limitation on the period) on November 30, 1995;

96Hun-Ma9, etc. on Articles 89 (1), (2) (prohibition of establishing affinitive organizations), 93 (3) (banning issuance of ID cards for campaign purpose), 111 (limitation on legislative activities and other reporting activities), 150 (3), (4), (5) (the method of deciding candidacy code) on March 28, 1996;

96Hun-Ma18, etc. on Articles 111, 141 (1) (limitation on party unity rallies), 142 (1) (limitation on meetings of party officials), and 143 (1) (limitation on party member training) on March 28, 1996;

95Hun-Ka17 on Articles 230 (1) (ⅲ) (ⅳ) and (2), (3) (vote buying, etc.) on March 27,

1997; and

96Hun-Ba60 on Articles 113 (limitation of political donation) and 230 (1) (ⅰ) (vote buying etc.) on November 27, 1997.

The decision on Article 111 of the Act received much public attention. This article allowed the assemblypersons to publicly report their legislative activities before the election period, raising the question of equal opportunity for those candidates who were not incumbent. The Court ruled that reporting legislative activities is an assemblyperson's political function and his/her unique occupational duties. A new campaign activity is not authorized anew just because the ban on them applies only during the campaign period. This is not an irrational discrimination against the challengers in favor of the incumbents. Even if the incumbents actually carry out a campaign activity under the pretext of reporting his legislative activity, thereby creating inequality in campaign opportunities, the inequality created is in fact preventable by thorough enforcement of the law, not inequality in law.

Justices Kim Moon-hee, Hwang Do-yun, Chung Kyung-sik, and Shin Chang-on joined in an opinion of unconstitutionality, asserting that any reporting done immediately before the campaign period is essentially a campaign activity, and Article 111 gives the incumbents a longer campaign period, depriving the challengers of equal opportunity in election campaign.