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officials from joining a political party does not violate the principle against excessive restriction. The provision to forbid joining a political party prohibits elementary and secondary school teachers from being a member of a political party whereas it allows university faculty to join a political party. Nonetheless, it is a reasonable discrimination under the comprehensive considerations of nature and contents of their works in knowledge transmission, research, etc., and working environments. Therefore, it does not violate the principle of equality.’ Any circumstance or need to reverse the above decision is not perceived and the purport of the decision is also reasonable in this case and, accordingly, the Court determines to maintain the opinion of the previous cases. 3. Regarding the Part ‘Other Political Organizations’ from Provision of State Public Officials Act a. Unconstitutionality Opinion of Three Justices They all agreed on the part ‘Violation of Principle of Clarity’ from section b. Unconstitutional Opinion of Other Three Justices. Moreover, the part regarding ‘other political organizations’ from the Provision of the State Public Officials Act is a regulation based on ‘the contents of expression’ in the collective form about what organization they join and, therefore, the concept of regulated expression should be defined more precisely. Nevertheless, the Provision of the State Public Officials Act used an ambiguous concept of ‘other political organizations,’ causing a chilling effect on those bound by the law and raising the possibility of arbitrary judgment by law enforcement officials. It is obvious that the Provision of the State Public Officials Act is unconstitutional as it violates the principle of clarity and infringes upon the freedom of political expression and freedom of association of the rest of the Complainants. Thus, the Court decides not to judge whether it violates the principle against excessive restriction and infringes upon their - 41 -

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2018Hun-Ma551

Judgment

Question Presented: Whether prohibiting elementary and secondary schoolteachers from establishing and joining political parties unreasonably infringes on their right to freedom of association. Whether the ban on elementary and secondary schoolteachers creating or being members of “other political organizations” as stated in Article 65(1) of the State Public Officials Act is clear and meets the balancing test set up by the court to justify a restriction on political rights.

Alleged Acts: The complainants—a group of schoolteachers—alleged that provisions of the “State Public Officials Act” and the “Political Parties Act” preventing schoolteachers from joining political parties and other political organizations infringed on their constitutional freedoms to “establish and join a political party.”

Procedural history: Complainants filed a complaint with the Constitutional Court on May 29, 2018, claiming that the relevant provisions of the Acts had infringed upon their freedoms to establish and join a political party.

Summary: The Court found that some of the complaints were inadmissible because the complainants did not file their complaints less than a year after they were appointed as teachers, in accordance with the law. Those complaints were struck by the Court. Art. 22(1) of the Political Parties Act states that “(1) Anyone who has the right to elect members of the National Assembly is entitled to become either a promoter or a member of political party, notwithstanding the provisions of other statutes that prohibit him/her from joining political party or engaging in political activity due to their status as a public official or others . . . this shall not apply to any of following persons. . . . 2. Teachers in private schools excluding the school teachers provided in Article 14 (1) and (2) of the Higher Education Act.” Article 65(1) of the State Public Officials Act also states that “(1) No public official may participate in organizations of or join any political party or other political organizations.” The Constitutional Court had ruled in two previous cases that these provisions prohibiting public officials from joining political parties did not violate the Constitution. The Court’s reasoning was twofold. First, the Court found that the purposes of public official neutrality and educational neutrality were legitimate State concerns. Second, the Court held that the provisions were valid under the least restrictive principle because the teachers could still support a political party in a personal capacity by voting in elections. Using a balancing test, the Court found that the public interests of official neutrality and educational neutrality outweighed the private political interests of educators. The Court accordingly found against the complainants on this issue. However, six of the nine justices voted to strike the “other political organizations” provision of Article 65(1) of the State Public Officials Act as unconstitutional for its ambiguity, though the justices disagreed on whether the provision infringed on the teachers’ freedoms of expression and association. In the first opinion, three justices discussed how the phrase was ambiguous enough to have a “chilling effect” on the teachers, who could be subjected to arbitrary rulings regarding their membership in certain organizations. These justices declined to comment on whether the provision violated the teachers’ freedoms of political expression and association. A second group of justices agreed that the provision was unconstitutional because the phrase was too ambiguous to distinguish between “political organizations” and “non-political organizations” and that such a lack of clarity infringed on the teachers’ freedoms of political expression and association. These justices held that the provision did not promote a politically neutral education, which could be accomplished through less restrictive means (e.g., monitoring the teachers’ activities) and instead becomes excessively restrictive. Therefore, the “other political organizations” provision failed the judges’ balancing test and was struck down.

Conclusion: Some of the complaints were immediately dismissed. The “other political organizations” provision of the State Public Officials Act was struck down as unconstitutional due to its ambiguity/lack of clarity.

Legal Issue(s)

Freedom of association and assembly
Voters' Rights

Applicable Law(s): Article 22(1)—(2) of the Political Parties Act Article 2(2)(2) of the State Public Officials Act Article 65(1) of the State Public Officials Act

Region: Asia-Pacific

Country: South Korea

Language of Decision

English

Court: Constitutional Court

Election Type: Review of law

Date of decision: Apr 23, 2020

Geolocation

Latitude: 37.75623977073077

Longitude: 127.71972566843036

: Geolocation

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2018Hun_Ma551.pdf
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2018Hun-Ma551

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