"Restrictions on Assemblies Due to Abstract Risks to Election Fairness... Difficult to Justify"
Opposing View: "Not an Excessive Restriction 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 at the Constitutional Court in Jongno-gu, Seoul, on the afternoon of the 21st. [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 prohibiting assemblies during the election campaign period to influence elections is unconstitutional.
On the 21st, the Constitutional Court made an unconstitutional ruling with a 6 (unconstitutional) to 3 (constitutional) decision in a constitutional complaint case filed by broadcaster Kim Eo-jun and former SisaIN reporter Joo Jin-woo, claiming that Article 103, Paragraph 3 of the Public Official Election Act infringes on the freedom of election campaigning, freedom of 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 pre-notify the holding of assemblies and campaigning with loudspeakers to attendees.
During the first trial, Kim and others requested a constitutional review, arguing 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 banning 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. Kim and others filed another constitutional complaint against Article 103, Paragraph 3 of the Public Official Election Act during the second trial in February 2018, and the appeal trial is currently ongoing.
The Constitutional Court judged, "Unless there is a concrete risk to the fairness and tranquility of the election, it is difficult to justify a blanket and comprehensive restriction on assemblies or meetings aimed at influencing the election based solely on an abstract risk to election fairness."
It further stated, "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 restricts basic rights less by allowing assemblies or meetings 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 are fully possible even during the election campaign period," and "The provision under review cannot be seen as excessively restricting candidates’ freedom of election campaigning, political expression, and freedom of assembly."
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