중앙데일리

Election officials say they are, but Roh is challenging that.

Are the president’s political remarks illegal?

July 03,2007
At a forum on June 2 in Seoul, President Roh (above) made disparaging remarks about the Grand National Party’s presidential candidates.
Does the president have the right to say he supports or dislikes a certain candidate in the upcoming election?
President Roh Moo-hyun and the Blue House think so. The National Election Commission disagrees. And both sides seem to have good reasons, according to the two different laws on which each side bases its arguments.
It is clear why the National Election Commission has tried to stop the president from making political comments. It cites Article 9 of the election law, which stipulates that a civil servant must be politically neutral. The National Election Commission said Roh is a civil servant working for the government and should abide by this law.
But Roh has publicly spoken on several occasions of his dislike for the opposition candidates. Twice, the election watchdog gave him an official warning. Roh fired back that the decision is hypocritical, because he has the right to make political comments. Roh filed a constitutional challenge to the provision in the election law regarding public servants’ political neutrality. His petition has brought the issue to a head.
Roh said Article 9 of the election law was clear enough and asserted that the election watchdog had interpreted it incorrectly. He said that as president, he is free from the restrictions established for civil servants. The Blue House said Roh is an elected official and not a career civil servant, therefore restricting his political remarks is virtually impossible. The president’s office said that no democratic country prohibits the president’s political activity.
There is another law that the president says gives him the right to make political statements. It’s Article 3, Clause 3 of the State Public Officials Act, which says that civil servants working as political leaders are exempt from keeping political neutrality, unlike other civil servants. This would include the president, the prime minister and lawmakers who are directly involved in political affairs. The law permits him to engage in political activities such as membership in a political party. Roh was a member of the Uri Party until he voluntarily resigned in February.
Roh said the two laws are contradictory and asked which of them should be followed. The civil servant law allows him to be involved in political activity while the election law prohibits him from taking any action that can affect the election. He also said that Article 9 of the election law was vague and wanted to know exactly which actions were illegal. He insisted it is not fair that we leave the National Election Commission to interpret an ambiguous election law at their convenience, calling such law unconstitutional. Roh filed a Constitutional Court petition to nullify the clauses outlawing the president’s political remarks and activities.
But does his claim that the election law clause is unconstitutional have any merit? Although the court has until December to decide, lawmakers are divided on the issue.
Lim Chae-jung, the National Assembly speaker, pointed out that the election law seems outdated and rigid now because it was enacted to prevent a dictatorship reemerging in Korea. In the 1970s, the late president Park Chung Hee fiddled with the election law so that he could extend his term in office. He held the reins of government for 18 years until his assassination. The election law was tightened to avoid the kind of political havoc the country experienced during authoritarian rule. But Lim said Korea has become a democratic country and there should be revisions in a law if parts of it are not realistic.
The Uri Party agreed with Lim, saying the president is no longer an omnipotent ruler who can control the outcome of an election. The party said it was true that an article in the election law clashed with the civil servant law, and called for a review and possible revision.
But the Grand National and Democratic parties have different views. They said the president should follow the current law. They said there’s nothing to be confused about, because the civil servant law was a common law, whereas the election law was a special law that goes above the common law and needs to be followed for special occasions such as an election.

On June 7 the National Election Commission, led by Koh Hyeon-chol (right), ruled that Roh’s remarks violated political neutrality By Cho Yong-chul
Law experts agree with the Grand National Party because they say there is no legal flaw in the election law. Kim Sung-ho, the Justice Minister, also disagreed with the Blue House, and told a hearing at the National Assembly that the election law is constitutional.
Law experts say that civil servants are those working for a government department or agency; they have a duty to stay politically neutral. The basis for this is that Korea is one of few countries in the world that follow the same presidential system as the United States. (Korea and Philippines are the only Asian countries with a presidential system; others have cabinet governments or other systems.) In all countries with a presidential system, laws limit the political freedom of civil servants, particularly high-level officials, such as the president.
Why do they do this? Just as Korea went through hardships with dictatorships, other countries had experienced their own travails before they set up a law to limit the political freedom of civil servants.
In the early 19th century in the United States, government jobs were mainly given at the pleasure of the president ― meaning a person could also be fired at any time. Called the spoils system, this meant government jobs were used as rewards and incentives by leaders after winning an election. This kept the government strong with loyal followers filling up the major posts. President Andrew Jackson used this system to replace almost everyone in the government after he became president in 1828. A backlash arose opposing such system; discussions grew asserting that government posts should be based on merit and qualifications measured by tests. Amid the discussions, people began to assert that it was important that the civil service elite should stay politically neutral.
Later, the Hatch Act of 1939 prohibited civil servants from engaging in political activities while performing their duties.
Korea adopted the civil servant law, or the State Public Officials Act in 1949, one year after the country established a government.
Civil servants are defined as not only those working in government ministries and agencies, but also those who serve the public under democratic rules. But Korea has learned the hard way that a fair and neutral election is hard to achieve. This is why many law experts say that the State Public Officials Act should emphasize the importance of keeping the political neutrality of civil servants. The president, who is the highest-level civil servant, should become an exemplar for other civil servants, they say.
Huh Yeong, a constitutional law professor at Myongji University, says it is indeed illegal for the president to make remarks deprecating opposition candidates during the campaign period. Such remarks can hurt the principle of a fair election and should not be considered an expression of the president’s political freedom.
We’ll have to wait and see what the court says.
The court holds a preliminary review on the petition and will either reject it or order a plenary review within 30 days, which will be in mid-July. If the petition goes to a plenary session, it could take up to 180 days, which means Dec. 18 may be the latest date for the court to make its final decision.


By Lee Min-a Staff Writer [mina@joongang.co.kr]



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