[Viewpoint]The rights of citizen Roh

The controversy over whether President Roh Moo-hyun’s remarks at the Participatory Government Evaluation Forum on June 2 were against the election law has entered a new phase since the president filed a constitutional petition on Thursday.
After the National Election Commission decided that Roh’s remarks concerning the opposition presidential candidates violated the president’s duty to maintain a neutral stance during elections, he was asked by the commission to stop making such remarks. But he simply ignored the warning and lit into the opposition again during a lecture at Wonkwang University.
The commission had no choice but to reconfirm its earlier decision that the president violated the election law. This prompted the Blue House to file the constitutional petition.
The confusion surrounding the issue is still unsettled, with two theories at loggerheads. On one side the Blue House claims that stopping the president from making political remarks violates the constitution. On the other side is the belief that the president represents the sovereign nation and as such he cannot file a constitutional petition. The situation has become even more tangled because of a separate debate over whether the National Election Commission has the jurisdiction to decide matters related to the political neutrality of civil servants.
In order to analyze this issue, the distinction between a political remark and interference in the election must be understood in advance. It is evident that the president, unlike a judge or an election commissioner, is not required to keep strict political neutrality. However, Koreans, who have witnessed numerous past irregular government interventions in elections, including that committed by the Syngman Rhee administration on March 15, 1960, demand that the president be neutral during elections. This demand, the product of bitter experience, is embodied in the election law.
However, it is not right to apply this duty to be neutral under the election law to all public servants. For example, Article 86 of the election law prohibits civil servants from participation in election campaigns, but excludes National Assemblymen and the members of local councils. It is noteworthy, however, that the law does not grant this exemption to the president, cabinet ministers and the heads of local autonomous organizations, despite the fact that they are also political civil servants, like assembly members.
In this case what matters is the fact that the incumbent president can exercise an inordinately strong influence on large numbers of civil servants. Moreover, the president’s remarks did not stop at criticizing the policies of the opposition or advocating a certain government policy, he went so far as to directly oppose the election of a certain candidate. As a result, the situation developed to the present stage.
Given the nature of the remarks, it was proper for the National Election Commission to rule that the president violated his duty to maintain political neutrality. Moreover, the fact that the president made similar remarks repeatedly despite the commission’s warning shows that the president has no respect for both the commission’s decision and the election law itself. The president has been widely criticized for this reason.
Of course, there are countries like the United States that allow their presidents to actively participate in partisan electioneering. But the United States successfully blocks the illegal intervention of the executive in elections, as was shown in the Watergate incident. The theory that we should also allow the president to take sides in elections is persuasive to a certain extent. But in order to allow for this kind of activity, we must first revise the election law following established democratic procedures. For the chief executive of the nation to break the law repeatedly can never be justified.
Since the president has filed a constitutional petition, the arena of controversy will now move to the Constitutional Court. Consequently, there will be more legal debates at the court.
On the issue of whether the president is entitled to file a constitutional petition, I take the view that the president is also a Korean national and as such he holds basic rights. I think it is an archaic way of thinking to believe that the president cannot enjoy basic human rights because he represents the nation. I am of the opinion that the situation in which the president claims his basic rights are infringed by other government organizations is proof that presidential status is no longer omnipotent in our society.
Ultimately, I expect that the Constitutional Court will decide that the election commission’s decision represents a justifiable limit on the president’s basic rights. Although the president enjoys the rights of a citizen, it is a fact that in connection with his duties his rights are constrained to a greater degree than those of an ordinary citizen.

*The writer is a professor of constitutional law at Korea University. Translation by the JoongAng Daily staff.

by Chang Young-soo