Constitutional Court Rules 'Public Official Election Act' Banning Assemblies During Election Period Unconstitutional (Comprehensive)

"Restrictions on Assemblies Due to Abstract Risks to Election Fairness... Difficult to Justify"
Opposing View: "Not Excessive Restrictions on Election Campaigning, Political Expression, or Freedom of Assembly"

Chief Justice Yoo Nam-seok of the Constitutional Court and other justices are seated ahead of the verdict on the afternoon of the 21st at the Constitutional Court in Jongno-gu, Seoul.
[Image source=Yonhap News]

[Asia Economy Reporter Heo Kyung-jun] The Constitutional Court has ruled that the current provision in the Public Official Election Act, which prohibits assemblies during the election campaign period to influence elections, is unconstitutional. On this day, the Constitutional Court delivered decisions of unconstitutionality or constitutional incompatibility on multiple cases related to the Public Official Election Act.

On the 21st, the Constitutional Court ruled unconstitutional by a 6 (unconstitutional) to 3 (constitutional) vote in a constitutional complaint case filed by broadcaster Kim Eo-jun and former SisaIN journalist Joo Jin-woo. They argued that Article 103, Paragraph 3 of the Public Official Election Act infringes on the freedom of election campaigning, political expression, and freedom of assembly and association.

Article 103, Paragraph 3 of the Public Official Election Act stipulates that no one may hold gatherings or meetings such as hometown associations, clan associations, alumni meetings, unity rallies, or outings, or any other assemblies or meetings during the election period to influence the election.

Kim and others were prosecuted in September of the same year on charges of violating the Public Official Election Act for conducting election campaigning through public speeches and dialogues of Democratic United Party candidates shortly before the April 11, 2012 general election, and for using the internet broadcast ‘Naggomsu’ and Twitter to notify the holding of assemblies in advance and campaigning with loudspeakers to attendees.

During the first trial, Kim and others requested a constitutional review, claiming that Article 103, Paragraph 3 of the Public Official Election Act was potentially unconstitutional, but the court did not accept the request.

However, the court did request a constitutional review regarding the provision that prohibits election campaigning by journalists. The Constitutional Court ruled that the provision infringed on the freedom of election campaigning and declared it unconstitutional, leading the prosecution to withdraw charges related to the unconstitutional part.

Subsequently, the first trial sentenced Kim and Joo to fines of 900,000 won each. In February 2018, during the second trial, Kim and others again filed a constitutional complaint against Article 103, Paragraph 3 of the Public Official Election Act, and the appeal trial is currently ongoing.

The Constitutional Court stated, "Unless there is a concrete risk to the fairness and tranquility of the election, it is difficult to justify a comprehensive and blanket restriction on assemblies or meetings aimed at influencing the election based solely on an abstract risk to election fairness."

It further ruled, "If the general presumption that there is a direct risk to legally protected interests can be denied in specific situations, the legislature should regulate in a way that allows assemblies or meetings to be held, limiting fundamental rights less rather than imposing a total ban."

On the other hand, Justices Lee Sun-ae, Lee Jong-seok, and Lee Young-jin dissented, stating, "The freedom of assembly and political expression is restricted only for assemblies or meetings held with the purpose of influencing the election, and assemblies or meetings without such purpose can be held freely even during the election campaign period," and "The provision under review cannot be seen as excessively restricting the freedom of election campaigning or political expression and assembly rights of candidates."

Additionally, the Constitutional Court declared constitutional incompatibility for provisions banning the posting of banners and advertisements during the election period, as well as for provisions restricting the use of sashes or badges.

Article 90, Paragraph 1 of the Public Official Election Act restricts banners and advertisements during the election period, and Article 93, Paragraph 1 restricts the posting of documents or pictures. The Constitutional Court judged that these provisions broadly restrict the freedom of expression of general voters.

Moreover, the Constitutional Court unanimously ruled constitutional incompatibility on Article 68, Paragraph 2 of the Public Official Election Act, which restricts election campaigning using sashes, clothing, or badges. The provisions declared constitutionally incompatible will continue to apply until they are amended by the National Assembly by the deadline of July 31 next year.

Conversely, the Constitutional Court unanimously upheld the constitutionality of Article 91, Paragraph 1 of the Public Official Election Act, which prohibits election campaigning using loudspeakers.

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