Constitutional Court Rules Election Law Provision Punishing Pastors for Campaigning During Sermons Constitutional

The Constitutional Court has ruled that the provision in the Public Official Election Act prohibiting pastors from campaigning during worship services and punishing violations thereof does not violate the Constitution.

On the 25th, the Constitutional Court unanimously upheld the constitutionality of Article 85, Paragraph 3, and Article 255, Paragraph 1, Item 9 of the Public Official Election Act, which prohibit electioneering by religious figures, in a constitutional complaint filed by pastors Lee and Park. They argued that these provisions infringed on religious freedom and freedom of expression.

Seoul City Jaedong Constitutional Court.
Photo by Yonhap News

Article 85, Paragraph 3 of the Public Official Election Act states that "No one shall use their official duties within educational, religious institutions, or organizations to conduct electioneering among members." Violations are punishable under Article 255, Paragraph 1, Item 9 of the same law by imprisonment of up to three years or a fine of up to 6 million won.

Lee was indicted for violating the Public Official Election Act after mentioning during a sermon at his church on March 29, 2020, about two weeks before the 21st general election, "Everyone, number 2, Elder Hwang Kyo-an's party. Please vote number 2." In September 2021, the Supreme Court confirmed a fine of 500,000 won.

Pastor Park was fined 1.5 million won after telling his congregation on January 6, 2022, about two months before the presidential election, not to vote for Lee Jae-myung, then the Democratic Party leader and presidential candidate, criticizing him.

Both individuals filed a request for a constitutional review with the court, claiming that the provisions banning pastors from campaigning were unconstitutional. After the request was dismissed, they directly filed a constitutional complaint with the Constitutional Court.

In the first trial, Lee was found guilty not only of violating the prohibition on using official duties under the Public Official Election Act but also of violating the election campaign period, and was fined 700,000 won. However, the law was later amended to allow verbal electioneering outside the election day unless using loudspeakers or holding outdoor rallies targeting large groups. The appellate court recognized this as grounds for dismissal regarding the election period violation and reduced the fine to 500,000 won. The Supreme Court then confirmed the 500,000 won fine.

Lee also filed a constitutional complaint regarding the provision punishing violations of the election campaign period. However, the Constitutional Court dismissed the complaint, stating that since the law had been amended and the dismissal was confirmed, and because retrials are not allowed for dismissal rulings, the requirement of "predication of judgment" under Article 68, Paragraph 2 of the Constitutional Court Act for filing a constitutional complaint was not met.

On the other hand, all justices participating in the review unanimously upheld the constitutionality of the provisions prohibiting religious figures from using their official duties within organizations to conduct electioneering and punishing violations thereof.

The Constitutional Court rejected the petitioners' claim that the provisions violated the principle of legality and clarity in criminal law.

The Court explained, "Using 'official duties' within a religious organization means that a person who can exert influence over members in any form, based on their role or internal status within the religious organization, exercises the influence associated with that position to achieve their objectives."

It added, "It is impossible or extremely difficult to enumerate all specific acts that constitute using official duties within a religious organization. Whether a particular act constitutes using official duties within a religious organization can be judged by comprehensively observing various circumstances such as the position held by the actor within the religious organization, the nature of the duties performed, and the timing, place, and method of the act."

The petitioners argued that the challenged provisions violated religious freedom and freedom of expression by violating the principle of proportionality, but the Court did not accept this either. The Court found that the provisions met all requirements to avoid violating the principle of proportionality, including ▲legitimacy of legislative purpose ▲appropriateness of means ▲minimal infringement ▲balance of interests.

First, the Court stated, "The restriction on using official duties aims to ensure the fairness of elections. This legislative purpose is legitimate, and imposing penalties on those who violate this prohibition contributes to achieving the legislative purpose, thus the appropriateness of the means is recognized."

Furthermore, the Court noted, "Clergy are not only religious leaders but are sometimes regarded as social leaders and can exert considerable influence over their congregants. Representatives or executives of congregations may also exert significant influence over other members. When a person performing certain official duties within a religious organization attempts to induce support or opposition for a particular candidate or party in a public election based on their leadership or influence, the members targeted are more likely to form distorted political opinions influenced by that power."

It continued, "The ultimate goal of elections is to accurately reflect the political will of the people in representative bodies. If the political will of the people is distorted from the formation stage, ensuring the fairness of elections becomes difficult."

The Court pointed out that ▲campaigning based solely on personal relationships without using official status is not subject to regulation under the challenged provisions, and ▲simple expressions of opinion or greetings during holidays sent via text messages are not considered electioneering. It stated, "Concerns that the restriction on using official duties would excessively suppress normal religious activities or social interactions within religious organizations are unfounded."

Finally, the Court concluded, "Considering the nature of religious organizations, where members form close relationships based on shared faith, and the considerable influence held by clergy or those with official duties within the organization, prohibiting such electioneering in principle and punishing violations ensures election fairness, allows religious organizations to perform their essential functions, and prevents adverse effects arising from improper entanglement between politics and religion, thereby achieving a greater public interest."

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