The Constitutional Court ruled that the Public Official Election Act provision that led former Justice Party lawmaker Lee Eun-ju to resign her seat does not violate the Constitution. As a result, in each party's internal primary to select candidates for proportional-representation lawmakers, candidates will continue to find it difficult to campaign.
The Constitutional Court on the 24th ruled that the provision of the Public Official Election Act that bars proportional-representation National Assembly candidates from setting up campaign offices for internal primary activities does not violate the Constitution, with three justices finding it constitutional and five calling it incompatible with the Constitution.
The court also issued a constitutionality ruling, with four justices finding it constitutional and four calling it incompatible with the Constitution, on the Political Funds Act provision that does not include proportional-representation National Assembly candidates among those eligible to designate a support committee.
◇ Public Official Election Act provision, 3 constitutional vs. 5 incompatible
Previously, Lee, a former policy director of the Seoul Metro labor union, was elected in the 2020 general election after receiving the No. 5 ranking on the Justice Party's proportional-representation candidate list.
From September to November 2019, Lee was indicted on charges of illegally receiving 3.12 million won in political funds from 77 Seoul Metro union members. Lee was also charged with providing food worth 370,000 won to members of the "Subway workers to the National Assembly" task force organized to support Lee's election, and paying a total of 7.5 million won in wages to the campaign office situation room chief and the advance team leader.
On Feb. 15, 2024, the Supreme Court finalized a lower court ruling sentencing Lee to eight months in prison, suspended for two years. Lee was also charged with campaigning while serving as a union policy director, a position barred from campaigning, but that part was excluded from the indictment during trial after the Constitutional Court found it unconstitutional in June 2022.
On the Public Official Election Act provision barring proportional-representation National Assembly candidates from setting up campaign offices, the Constitutional Court said, "A campaign office is not an efficient method of primary campaigning for those who must introduce themselves to a nationwide electorate." It also said, "Setting up a campaign office is a high-cost primary campaign method, so the likelihood of obtaining a ranking within electable range could be determined by a candidate's financial resources."
Justices Kim Bok-hyung, Jeong Gye-seon, Ma Eun-hyeok, and Oh Young-joon, who issued opinions of incompatibility with the Constitution, said, "As a space to prepare for primary campaigning, a campaign office is essential," adding, "The Public Official Election Act bans this and punishes violations, excessively infringing on freedom of political expression." Justice Kim Hyeong-du said, "A campaign office is the minimum material condition for primary campaigning," and issued an opinion of incompatibility with the Constitution.
A decision of incompatibility with the Constitution requires at least six votes. Although more justices favored incompatibility than constitutionality regarding the Public Official Election Act provision, the number stopped at five, so the current act remains in place.
On the Political Funds Act provision barring proportional-representation National Assembly candidates from forming support committees, the court found it constitutional, saying, "A considerable number of parties do not make internal primaries a mandatory procedure for nominating proportional-representation National Assembly candidates." It also said, "The need to secure campaign funds through designating a support committee is not greater than that of preliminary candidates for constituency lawmaker elections."
By contrast, Justices Kim Bok-hyung, Jeong Gye-seon, Ma Eun-hyeok, and Oh Young-joon issued opinions of incompatibility with the Constitution on the Political Funds Act provision. They said, "If a party conducts a primary, expense occurs. To become a proportional-representation National Assembly candidate, political funds are needed just as they are for constituency preliminary candidates," adding, "A support committee is the only way to raise political funds publicly."
◇ Former lawmaker Lee Eun-ju resigns before confirmation of a ruling nullifying election; Justice Party says "legislative gap"
Lee voluntarily resigned from the National Assembly on Jan. 24, 2024, before the ruling nullifying the election was finalized. At the time, with the end of the 21st National Assembly's term approaching, if the Supreme Court had finalized the ruling nullifying the election after Jan. 30, the proportional-representation seat could not have been passed to the next in line (former lawmaker Yang Kyung-gyu).
Kim Jun-woo, then the Justice Party's emergency committee chair when Lee resigned, said, "This case did not involve malicious and premeditated violations of the law, but arose from a legislative gap concerning internal primaries," adding, "There has been constant challenge to the current law that completely bans campaign activities allowing a proportional-representation preliminary candidate to introduce oneself."