Preference for Candidates with PreviousExperience at the Election of Local Education Board Members

(15-1 KCCR 319, 2002Hun-Ma573, March 27, 2003)

Held, relevant provisions of the Local Education Autonomy Act allotting up to one-half of the seats at the local education board at the election for its members for those candidates with previous expe-

rience in education or educational administration for ten years or longer are constitutional.

A. Background of the Case

The Local Education Autonomy Act provides that if, at the election for the members of the local education board, those with experience in education or educational administration for ten years or longer (hereinafter referred to as the 'candidates with previous experience') occupy less than one-half of the entire number of seats open for election in terms of the absolute number of votes, the candidates with previous experience shall be elected by the number of votes obtained compared solely among such candidates regardless of the absolute rate of the obtained votes, until such candidates occupy one-half of the seats open for election.

The complainant ran for the seat at the city and province educa-

tion board held on July 11, 2002 for the North Gyongsang Province First Election District where three seats were open for election. The complainant obtained the third-most number of the votes at the election, but was not elected to be an education board member due to the above provisions of the Act. The complainant thereupon filed a constitutional complaint in this case arguing that the above provi-

sions of the Act violated the right to hold public office, the right to equality, and the right to pursue happiness, among others, of the complainant, guaranteed by the Constitution.

B. Summary of the Decision

The Constitutional Court issued a decision dismissing the consti-

tutional complaint of the complainant on the ground that a required quorum for a decision of unconstitutionality had not been reached, as there was a split upon the above provisions at issue in this case between an unconstitutionality opinion of the mere plurality of fiveJustices and a constitutionality opinion of four Justices. The summaryof each of these opinions is stated in the following paragraphs.

(1)Summary of the Opinion of Four Justices that the Pro-

visions at Issue are Constitutional

(A)The legislative purpose of the provisions at issue in this caseis to realize the constitutional ideals of autonomy and expertise in education by allotting a certainportion of the membership of the ed-

ucation board for the candidates with previous experience in education.Such legislative purpose is legitimate, and the means employed is alsoappropriate as allotting one-half or more of the seats at the educationboard to the candidates with previous experience, who are the educationexperts, is an effective means to achieve such legislative purpose.

In addition, beyond the ratio of one-half of the entire membershipof the education board for which the candidates with previous expe-

rience receive preferential treatment for election, there is a road openfor those candidates who lack previous experience to be elected as members of the education board by a majority rule under democraticprinciples. Also, in adjusting to satisfy all three of the constitutionalvalues of 'democracy, local autonomy, and autonomous education' demanded for autonomy in local education, it is never an easy task to find and employ other legislative means that are less restrictivethan the means adopted in the provisions at issue in this case.Considering the above, the provisions at issue in this case may not be deemed to violate the principle of least restrictive means.

Although democratic legitimacy slightly recedes and the right to hold public office of the candidates without preferred previous expe-

rience is restricted by a certain degree under the provisions at issue in this case, the public interest advanced by the achievement ofautonomy and expertise in education is never lesser than the interestsrestricted thereby. Therefore, the provisions are not violative of the principle of balance between the legal interests concerned.

Therefore, the provisions do notviolate the principle of propor-

tionality or the principle against excessive restrictions, and do not thus infringe upon the right to hold public office that is a basic right of the citizenry guaranteed by Article 25 of the Constitution.

(B) The provisions at issue in this case discriminates against the candidates without experience for the candidates with previous experience at the election for the members of the education board, thereby significantly restricting the right to hold public office by causing some of the candidates without experience to lose at theelection despite more votes obtained. Therefore, strict scrutiny underthe principle of proportionality that is an exacting standard concerningthe right to equality applies here.

However, even under strict scrutiny, the differential treatment under the provisions at issue in this case is to guarantee autonomy and expertise of education protected by the Constitution and, as such, the legislative purpose thereof is legitimate. Further, such differential treatment is appropriate as a proper means to achieve the legislative purpose, and the proportionality requirement is also met between the public interest served and the interests restricted by the differential treatment. Thus, the provisions do not violate the principle of equality under the Constitution.

(C) Therefore, for the foregoing reasons, the provisions at issue in this case do not infringe upon the right to hold public office or the right to equality of the complainant. The right to pursuehappi-

ness and human dignity and value asserted by the complainant does not bear a substantive relationship to the provisions at issue in this case. Thus, in turn, the provisions may not be deemed to infringe upon such basic rights.

(2) Summary of the Opinion of Five Justices that the Pro-

visions at Issue are Unconstitutional

The legislative purpose of the provisions at issue in this case isto achieve expertise and autonomyin education in realizing the au-

tonomous local education system and, as such, the legislative purposeis legitimate.

However, allotting under the provisions at issue in this case one-half or more of the seats at the education board to candidates withprevious experience to achieve the above legislative purposetherebycausing in certain situations thecandidates without preferred experi-

ence to lose at the election despite a greater number of votes obtainedis against the basic principles of election and, as such, egregiously damages the values of democracyand conspicuously injures the har-

mony of threeof theconstitutional values of democracy, local auton-

omy, and autonomous education pursued in seeking autonomy in localeducation. Therefore, it lacks appropriateness as a means to achievethe legislative purpose.

Even though it is necessary to secure a certain portion of theeducation board membership for the candidates with previous experienceas a means to guarantee educational expertise, there exist less restric-

tive methods not infringing upon the right to hold public office of thecandidates without preferred previous experience, such as a separatevoting for candidates with previous experience and for the candidateswithout preferred previous experience. Therefore, employing the means as in the provisions at issue in this case is against the principle of the least restriction upon basic rights.

Furthermore, the provisions lack the required balance between thelegal interests concerned, as the effect of securing autonomy andexpertise of the members of the education board by the provisions at issue in this case is greatly outweighed by the prejudice causedby the damage to democracy and the infringement upon the basic rightssuch as the right to hold public office of the candidates withoutpreferred previous experience.

Therefore, the provisions at issue infringe upon the right to hold public office of the complainant in violation of the principle ofproportionality or the principle against excessive restriction. Further-

more, the discriminatory treatment against the candidates without preferredprevious experience at the election of the members of the

education board lacks appropriateness of the discriminatory treatmentas it is hardly effective in achieving the legislative purpose and can hardly be constitutionally permissible as a means. Furthermore, the public interest advanced by such discriminatory treatment is greatly outweighed by the interests prejudiced thereby, therefore there is no proportionality between the legal interests concerned. Therefore, the provisions at issue in this case violate the right to equality underthe Constitution of the candidates without preferred previous experience. Thus, for the foregoing reasons, the provisions are unconstitutional.