Constitutional Court Rules Pre-Amendment Article 254 of the Public Official Election Act 'Constitutional' Regarding Complete Ban and Punishment of Election Campaigning on Election Day

Constitutional Court Grand Bench.

[Asia Economy Reporter Choi Seok-jin, Legal Affairs Specialist] The Constitutional Court has ruled that the pre-amendment Public Official Election Act provision, which completely prohibits election campaigning on election day and punishes violations, does not violate the Constitution.

This is the first time the Constitutional Court has issued a ruling on the constitutionality of the punishment clause for election campaigning on election day.

On the 27th, the Constitutional Court announced that it decided the constitutional complaint case regarding Article 254, Paragraph 1 of the pre-amendment Public Official Election Act, which punishes those who campaign before the close of voting on election day, with a 5 (constitutional) to 4 (unconstitutional) vote.

The Court stated, "The punishment clause in question, which penalizes those who campaign on election day, does not violate the principle of proportionality nor infringe on the freedom of political expression such as election campaigning."

Mr. A was prosecuted for campaigning by sending text messages on election day, was fined 1 million KRW in the first trial on July 1, 2016, and appealed, but the appeal was dismissed.

Mr. A then filed an appeal to the Supreme Court, and during the appellate process, requested a constitutional review of Article 254, Paragraph 1 of the Public Official Election Act, which was the basis for his punishment. However, the Supreme Court dismissed his request and confirmed the original fine of 1 million KRW in February 2018. Subsequently, Mr. A filed a constitutional complaint with the Constitutional Court in March 2018.

The pre-amendment Article 254 (Violation of Election Campaign Period), Paragraph 1 of the Public Official Election Act stipulated that "anyone who campaigns before the close of voting on election day shall be punished by imprisonment for up to three years or a fine of up to 6 million KRW."

Mr. A argued in his constitutional complaint that the complete ban on all election campaigning on election day was an excessive restriction on the freedom of election campaigning and political expression.

This provision was later amended to allow some election campaigning even on election day. The current Article 254, Paragraph 1 of the Public Official Election Act states, "Anyone who campaigns by methods other than those prescribed by this Act before the close of voting on election day shall be punished by imprisonment for up to three years or a fine of up to 6 million KRW."

The Constitutional Court judged that although the pre-amendment provision completely prohibited election campaigning on election day and punished violations, this was an unavoidable measure to prevent fraudulent acts caused by indiscriminate campaigning on election day.

The Court explained, "If election campaigning were allowed on election day, indiscriminate campaigning could disrupt the peace of election day and adversely affect voters' free and rational decision-making. Therefore, the punishment clause in question can be seen as an appropriate means to achieve a legitimate purpose."

Furthermore, the Court pointed out, "Campaigning using online methods or text messages has a much larger scale and faster speed of dissemination compared to face-to-face campaigning, so it is difficult to say that its impact or influence on voters is insignificant. Election day campaigning has a temporal specificity that can irreversibly affect voters' judgments."

It added, "If unlimited campaigning on election day leads to continuous criticism or rebuttal of candidates, distorted facts or claims cannot be corrected, causing confusion. It is difficult to conclude that the purpose of this punishment clause can be sufficiently achieved solely by regulations such as maintaining order near polling stations."

The Court noted that although the law has been amended to allow certain campaigning using text messages on election day, this is a practical response to the blurred distinction between voter encouragement activities and election campaigning.

It also judged that since early voting days are not legal holidays and most voters continue their daily lives without significant impact from election campaigning, the lack of restrictions on campaigning on early voting days cannot be used as a basis to argue that restrictions on election day campaigning are unnecessary.

The Court further stated, "The period during which election campaigning is prohibited is from midnight on election day until the close of voting, which is less than a full day. Campaigning is guaranteed during the election campaign period up to the day before election day, and certain campaigning is allowed even before the start of the campaign period. Considering this, the restriction on political expression imposed by this punishment clause is not greater than the public interest."

However, four justices?Lee Seok-tae, Lee Eun-ae, Kim Ki-young, and Lee Mi-seon?dissented, arguing that "this punishment clause violates the principle of proportionality and infringes on the freedom of political expression such as election campaigning," and thus should be deemed unconstitutional.

The four justices agreed with the majority that it is not unconstitutional for the Public Official Election Act to limit the campaign period and punish campaigning outside that period, and that the punishment clause is an appropriate means to achieve a legitimate purpose. However, they criticized the clause for completely banning election campaigning on election day without exception, stating it violates the minimal infringement and balance of legal interests.

They argued, "The goals of maintaining order at polling stations, preventing socio-economic losses from overheated competition in campaigning, and ensuring voters' free and rational decision-making can largely be achieved by prohibiting campaigning, posting of promotional materials, and use of loudspeakers near polling stations on election day, as well as banning campaigning through broadcast media and punishing false statements and candidate defamation." They contended that less restrictive means exist to achieve the public interest, and thus the clause excessively restricts fundamental rights, violating the Constitution.

They also added, "The complete ban on campaigning on election day prevents candidates from rebutting allegations raised by competing candidates the day before, which may result in voters being unable to make correct judgments based on undistorted information."

Meanwhile, Mr. A also filed a constitutional complaint against Article 266, Paragraph 1 of the pre-amendment Public Official Election Act, which restricted the assumption of public office by persons punished for election crimes. However, the Constitutional Court dismissed it on the grounds that the 'premise of the trial' was not recognized.

The Court explained, "This restriction clause on holding public office is not applicable to the case concerning the applicant's violation of the election campaign period but is applied only after the criminal case is finalized, and its effect arises then. Furthermore, even if this restriction clause were unconstitutional, it would not result in a different judgment in the present case."

In other words, since this provision restricts the assumption of public office by persons convicted of election law violations and applies only after a final guilty verdict, even if the Constitutional Court ruled it unconstitutional, it would not affect the verdict on Mr. A's violation of Article 254 (Violation of Election Campaign Period) of the Public Official Election Act. Therefore, it does not meet the requirements of Article 68, Paragraph 2 of the Constitutional Court Act.

This content was produced with the assistance of AI translation services.