Previous 7 / 10 Next

legislative purpose is acknowledged. However, appropriateness of means or minimum restriction of the provision cannot be acknowledged, since it prohibits public officials from creating an organization that has nothing to do with such legislative purpose or joining it. Furthermore, appropriateness of means or minimum restriction of the provision is not acknowledged because it completely prohibits participating in the creation of it or joining it that is not relevant with the official duty of the school teachers under Article 19 Section 1 of the Elementary and Secondary Education Act under among the public educational officials under Article 2 Section 2 Item 2 under the State Public Officials Act (hereinafter referred to as the ‘Teachers’) or not regarded as use of the Teachers’ position. The political neutrality of public officials is required within the scope of performing their official duty in the position of serving the general public. As far as the opportunity to receive politically neutral education from the Teachers is guaranteed, the exercise of political freedom by the Teachers as the subject of the fundamental right does not necessarily infringe upon the right to education or undermine political neutrality of education. There is no logical or empirical ground that the political neutrality would be undermined even during the performance of the official duty if the Teachers exercise the political freedom as private figures. People’s confidence in the political neutrality of the public officials and education can be protected sufficiently through monitoring and control to prevent actions that can hamper the political neutrality in connection with the official duty or by use of the position. The political neutrality of the public officials and education that the provision can realize by absolutely prohibiting the Teachers from involving in establishing a political organization or joining it is neither evident nor specific. But the restriction imposed on the Teachers’ freedom of political expression and freedom of association and the damage done to the public interests such as openness of democratic decision making process and subsequent development of democracy resulting from the prohibition is very considerable. Hence, the provision fails to meet the balance of interests, violating the principle against excessive restriction and infringing - 43 -

Select target paragraph3

● ● ●

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

Primary Documents

2018Hun_Ma551.pdf
English
Download View

Election Judgments - IFES

Select target paragraph3

2018Hun-Ma551

Primary Documents

Notifications