Previous 6 / 10 Next

freedom of political expression and freedom of association. b. Unconstitutionality Opinion of Other Three Justices (1) Violation of Principle of Clarity Since the part ‘other political organizations’ from the Provision of the State Public Officials Act is a legal provision defining the conditions that constitute criminal punishment and restricts the freedom of political expression and freedom of association of the rest of the Complainants, it has to strictly comply with the principle of clarity. In a democratic state, all social activities of its citizens are related to ‘politics’. Organizations, in particular, can be seen to have a political inclination when they agree or disagree with the state’s policy or their ideas simply coincide with the argument of a certain political party or candidate by chance. As the State Public Officials Act specifies that it is ‘any political party or other political organizations’ that public officials are prohibited from joining and etc., it is hard to interpret that they are confined to political organizations that correspond to a political party according to the words. It is also difficult to draw a standard that distinguishes a ‘political organization’ and ‘non-political organization’ when there is no limit on their objectives or activities. Even though the legislative purpose of the provision to protect the political neutrality of both the public officials and education is taken into account, ‘political neutrality’ is a very abstract concept that is open to diverse interpretations and it is hard to believe that the members of this society have a unanimous understanding. It will also be the same, when it comes to the legal experts. Under the reasoning, the aforesaid provision violates the principle of clarity and infringes upon the freedom of political expression and freedom of association of the rest of the Complainants. (2) Violation of Principle against Excessive Restriction As the part regarding ‘other political organizations’ from the Provision of the State Public Officials Act is in place to protect the political neutrality of both the public officials and education, legitimacy of its - 42 -

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