In this complaint case, five justices were of the opinion that the election-law
provision was constitutional and two justices were of the opinion it was
unconstitutional, while the remaining two justices opined that President Roh’s
filing of the complaint failed to meet the procedural requirements prescribed by
the Constitutional Court Act. The reasoning of the majority was, among other
things, that although the president has a the constitutional status of a politician or a
political institution, his freedom of political speech can be restrained for the sake of
the prevailing interest of maintaining fairness in election management, because his
status as the head of the executive presents the real danger of a rigged election.
The dissenting opinion argued that the president, being by nature a political
official, could not be subordinate to public officials’ general obligation of neutrality
in election provided by Article 9 of the Public Officials Election Act, so that the
measure by the Election Commission was not grounded in justifiable law and
thereby infringed upon President Roh’s political right.
15
Constitutional review of the election system
In a 2001 landmark election-law case, a mutated proportional election system was
declared unconstitutional. The KCC struck down the element of proportional
representation of the old election law designed to distribute seats according to the
number of votes cast in favor of candidates of political parties in constituencies
instead of allowing the voters to cast a separate ballot for the listed party of their
choice.
(^16) The KCC ruled that such a mutated system violated the constitutional
principles of democratic election and direct election, as well as equal protection
before the law. Responding to this decision, the national assembly introduced the so-
called “one person two votes” system, in which every voter is permitted to cast two
votes, for a candidate in an election district and for a listed party. This new system
would ideally help advance small parties like the Democratic Labor Party in the 2004
and 2008 national elections and the United Progressive Party in the 2012 election.
In another 2001 case dealing with the election reapportionment plan, the KCC
declared that the constitutional principle of equality in election requires the
population disparity among all election districts to meet a limit of 50 percent
deviation (in which case the maximum permissible ratio between the most popu-
lous district and the least would be three to one), though in principle a limit of
33. 33 percent deviation would need to be achieved in the future. According to this
(^15) Constitutional Court Decision 2007 Hun-Ma 700 , January 17 , 2008 ,Korean Constitutional
Court Reports, Vol. 20 ,No 1 , Part 1 , 139.
(^16) Constitutional Court Decision 2000 Hun-Ma 91 · 112 · 134 (consolidated), July 19 , 2001 ,
Korean Constitutional Court Reports, Vol. 13 ,No 2 , 77. See also Jongcheol Kim, “Critical
review of the decision of unconstitutionality on the method of voting and distribution of
seats in the system of nationwide proportional seats – Constitutional Court Decision, July
19 , 2001 , 2000 Hun-Ma 91 · 112 · 134 (consolidated)” (in Korean) ( 2002 ) 3 Study on Consti-
tutional Practice 321.