Judicial Review of the Public Election Law in the Republic of Korea

Abstract

The public election law and system of a nation for electing representatives has the fundamental constitutional significance as a mechanism of institutionalizing representative democracy. The Constitution and the Public Election Act of the Republic of Korea set forth the free election and freedom in election campaign as the basic principles of the public election law and system of the nation, with individual statutory provisions regulating specific aspects of the public election as the exceptions. However, since the statutory revision to the integrated election law of the Public Election Act in 1994 from diverse statutes separately regulating different types of public elections, through revisions on more than 60 occasions, the Korean Public Election Act contains approximately 60 individual statutory provisions regulating particular aspects of the public election and limiting election campaign activities in terms of the persons who may conduct such activities, the time period permitted for them and the permissible methods of election campaign activities. Regulations on election campaign activities have incrementally increased since the 1994 revision. The Constitutional Court of the Republic of Korea since its establishment in 1988 has proactively reviewed the constitutionality of various aspects of public election law of Korea, primarily through the mechanism of constitutional adjudication of constitutionality review of the statute. Whereas the Constitutional Court has taken activist positions in areas such as electoral district reapportionment and the proportional representation system. leading to institutional changes such as the one person two votes system, the Constitutional Court has taken relatively passive positions in reviewing the constitutionality of statutory provisions regulating election campaign activities. Securing freedom and fairness in administering public elections is the core value and purpose in the public election law and system of Korea. The 1988 Constitution has in many regards normalized the nation’s de jure and de facto separation of powers structure by strengthening the authority of the National Assembly vis--vis the president and the executive branch and through the authority to monitor and control the incumbent powers of and in the government. The election law and system of Korea have been structured to sever the exercise of undue influence of incumbent powers in public elections held during their incumbency. Korea’s idiosyncratic constitutional-political experience of violations of relevant laws, excessive competition, corruption and lack of fairness in public election contexts offers at least partial account of the characteristics of the public election law and positions taken by the Constitutional Court. This does not justify the characteristics and the tendency of Korean election law and Constitutional Court to increasingly limit election campaign activities in public elections which ultimately undermines the freedom and fairness of the public election law and system. Legislative efforts to revise the statute to create a more balanced and sufficient guarantee of freedom and fairness in public elections and the establishment of jurisprudentially fine-tuned and constitutionally persuasive review standards and their consistent application by the Constitutional Court are needed.