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upon the equality right of the rest of the Complainants. Summary of Dissenting Opinion of Three Justices on Part regarding ‘Other Political Organizations’ from Provision of State Public Officials Act 1. Violation of Principle of Clarity The subject that the lawmakers regulate with the part regarding ‘other political organizations’ from the Provision of the State Public Officials Act is ‘a political organization’ and the typical and concrete example is ‘political party’ mentioned above. When the variability of a political organization whose nature is autonomous formation and operation in an ever-evolving political environment is taken into account, it is impossible or remarkably difficult in the perspective of the legislative technique for the lawmakers to specifically enumerate in advance political organizations that need to be regulated. As political activities of the day are carried out mainly by the people working under a political party or partisanship, an organization that supports or opposes a specific political party or politician beyond proclaiming an opinion about certain social issues can be seen to have an apparent political inclination. If the teachers participated in establishing such an organization or joining such an organization, confusion may be caused in the education field and people’s confidence in the political neutrality of the public officials and education may be shaken. In this regard, there should be such action should be restricted. When the gist of the Constitution that declares the political neutrality of the public officials and education, the legislative purpose of the Provision of the Public State Officials Act and relations with relevant norms are comprehensively taken into account, ‘the political organization’ that the public officials are banned from joining according to the Provision of the Public State Officials Act can be confined to ‘an organization that is very likely to undermine the political - 45 -

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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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