“It’s Like Incapacitating the President”

President Roh argues: “Blocking the president from influencing an election is like incapacitating him.”

The National Election Commission (NEC) counters with: “The clause of Election Law banning the president from ‘unduly’ influencing elections is reasonable.”

On November 1, the Constitutional Court held the first public oral proceedings over president Roh’s constitutional petition against the NEC’s request that he remain neutral in coming elections.

In the legal process, the attorneys and references from both sides argued fiercely with each other.

On two occasions the NEC urged the president to comply with Article 9, Clause 1 of Election Law, claiming that he violated the Law in his remarks at the Participatory Government Evaluation Forum on June 2, 2007, the Wonkwang University lecture on June 8, and an the interview with the Hankyoreh Newspaper on June 13. In response, the president filed a constitutional appeal in his capacity as a “natural person” on June 21.

Under the Law, the nation’s highest court delivers a ruling within 180 days of filing but it is not mandatory to do so. Therefore, no one knows when the Court will decide on the case.

Are presidents required to remain neutral?-

Article 9, Clause 1 of Election Law stipulates: “Public officials and persons who are required to remain neutral in elections must not unduly exercise influence or engage in any activities which may influence election results.”

The Roh side pointed out that the object of the Clause is unclear and therefore it is unconstitutional.

A reference of the president’s side, law professor Jeong Tae-ho of Kyung Hee University pointed out, “The range of ‘activities which may influence election results’ can be extended to mean virtually anything, but there is no defined scope of banned activities. Therefore, I don’t know what kind of behavior from the president doesn’t influence election results.”

He added, “If the president cannot do anything that may influence election results, it is like incapacitating the president. This is in direct conflict with the constitution.”

Another reference from NEC, law professor Noh Dong-il, of Kyung Hee University, on the other hand, retorted, “The president need not be exempt from the Election Law that requests public officials to refrain from activity that can unduly influence an election. Currently, the president enjoys enough freedom of expression.”

Is the president even qualified for a constitutional appeal? -

On this matter, both sides also have conflicting opinions.

NEC attorney Hwang Do-su said, “The party to which the NEC sent a legal letter was the President as a public institution. A “public institution” cannot file a constitutional petition against an act designed to inform it that it violated the Law and a request to comply with the Law. The act did not severely infringe on the President’s basic rights.”

Presidential attorney Goh Yeong-gu, on the other hand, rebutted, “The president is a public institution, a politician, an elected official, and a Korean citizen all at the same time. The NEC’s warning is a substantial and severe restriction to the president’s activity and honor as a politician.”

Did he actually violate Election Law? –

Both sides argued over whether or not the president violated Election Law.

Attorney Hwang explained, “The president criticized a particular presidential candidate’s policy proposals in his statements: ‘tax cuts are a gimmick,’ ‘daughter of a dictator,’ and ‘irresponsible political party.’ Given what, where and how often he said it, he is in clear violation of the Law.”

Attorney Goh, on the other hand, said “The president’s interview with the Hankyoreh Newspaper was in his capacity as a politician, and he spoke at the Participatory Government Evaluation Forum and gave lecture at Wonkwang University in his capacity as an individual. So, all are not subject to Election Law.”

will71@donga.com