Elections and National Assembly

Act on the Election of Public Officials and the Prevention of Election Malpractices (amended by Act No. 6265 on February 16, 2000) Article 21 (Full Number of National Assembly Members) (1) The full number of National Assembly members, for local constituency members and proportional representatives combined, shall be 273. (2) The full number of National Assembly members to be elected in a single local constituency shall be one.

Article 25 (Demarcation of Local Election Districts for National Assembly) (1) The local constituency for National Assembly (hereinafter referred to as the “election district for National Assembly”) shall be demarcated in the area under jurisdiction of the City/Province, in consideration of the population, administrative districts, geographical features, traffic, and other conditions, but a Ku (including an autonomous Ku), Shi (meaning a Shi where a Ku is not established), or Kun (hereinafter referred to as a “Ku/Shi/Kun”1)) shall not be partly divided and made to belong to another election district for National Assembly.

(2) [omitted] Article 3 of Addenda (Special Cases concerning Demarcation of Local Election Districts for National Assembly Members) Notwithstanding the provision of the latter part of Article 25(1), in the election of National Assembly members (including the special election, etc.), a divided part of the Haeundae Ku of the Pusan Metropolitan City may be made to belong to the local election district for the National.

Assembly member for Kijang Kun B, Haeundae Ku, and a divided part of the Puk Ku of Pusan Metropolitan City to the local election district for the National Assembly member for Kangso Ku B, Puk Ku, and a divided part of the Seo Ku of the Incheon Metropolitan City to the local election district for the National Assembly member for Kangwha Kun B, Seo Ku. 1). A city is called shi. A city is made up of Districts called Ku.

Within a Ku are neighborhoods called Dong. Some cities are not separated into districts. A district with not enough population to become a city is called Kun. Parties Complainants 1. Jeong Jin-sup (2000Hun-Ma92) Counsel (1) Attorney Han Kyung-soo (2) Legal Corporation Hanjoong Attorney-in-charge: Lee Hee-suk 2. Yang Yong-suk and 11 others (2000Hun-Ma240) Counsel: Ryu Kwon-hong Holding 1. Table 1, “the National Assembly Election Redistricting Plan,” pursuant to Article 25(2) of the Act on the Election of Public Officials and the Prevention of Election Malpractices (amended by Act No.

6265 on February 16, 2000) is nonconforming to the Constitution. 2. The above National Assembly Election Redistricting Plan shall remain effective temporarily until December 31, 2003, by which the legislature must revise the Plan. Reasoning 1. Overview of the Case and the Subject Matter of Review A. Overview of the Case (1) 2000Hun-Ma92 Complainant resides in “Kyonggi Anyang Dongan-Ku” Electoral District, and plans to vote in the 16th National Assembly election on April 13, 2000.

As of December, 1999, the district has a population of 331,458, about 59% more than the average population of electoral districts (total population 47,330,000 ? 227 electoral districts). The smallest electoral district in the National Assembly Election Redistricting Plan, “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District, has a population of 90,656. So, “Kyonggi Anyang Dongan-Ku” Electoral District has a population 3. 65 times larger than that of “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District.

On February 10, 2000, the complainant filed a constitutional complaint alleging that the present National Assembly Election Redistricting Plan was against the principle of equal election and that the Plan, under which the value of the complainant’s vote is only 1/3. 65 of a vote of an elector in “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District, infringed on the complainant’s right to equality and the right to vote. (2) 2000Hun-Ma240 Complainants reside in “Incheon Seo-Ku and Kangwha-Kun B” Electoral District, and plan to vote in the 16th National Assembly election on April 13, 2000.

On April 7, 2000, the complainants filed a constitutional complaint alleging that the present National Assembly Election Redistricting Plan, forming a single electoral district by adding Kumdan-Dong to Kangwha-Kun, violated the constitutional right to vote and the right of equality because Kumdan-Dong and Kangwha-kun are geographically separated from each other and there is no sense of social or economic solidarity between residents of Kumdan-Dong and Kangwha-Kun. B. Subject Matter of Review

The subject matter of review is the constitutionality of “Kyonggi Anyang Dongan-Ku” Electoral District and “Incheon Seo-Ku and Kangwha-Kun B” Electoral District in Table 1, “the National Assembly Election Redistricting Plan” (hereinafter called the “instant Election Redistricting Plan”), pursuant to Article 25(2) of the Act on the Election of Public Officials and the Prevention of Election Malpractices (amended by Act No. 6265 on February 16, 2000, hereinafter called the “Public Election Act”). Contents of the instant Election Redistricting Plan are as shown in “Attachment 1”. 2. Complainants’ Arguments …omitted 3. Review A.

Representative Democracy and the Principle of Equal Election Article 1(2) of the Constitution explicitly states the principle of the people’s sovereignty. However, under the representative democracy system adopted by most countries, the people holding the supreme power of the land delegate their power to the State agencies except in some rare cases. Success in a representative democratic system depends on how accurately and effectively people’s opinions are reflected in the political decision making process. In this light, the electoral constituencies rezoning should be done in such a way to accurately represent electors’ choice.

Violation of equality in voting rights caused by arbitrary redistricting would distort people’s opinions, and this would seriously undermine the basis of representative democracy. Article 11(1) of the Constitution declares the general “principle of equality,” and Article 41(1) of the Constitution declares the “principle of equal election” in the National Assembly election through the provision that reads “the National Assembly shall be composed of members elected by universal, equal, direct, and secret ballot by the citizens. ” The principle of equal election is a manifestation of the principle of equality in the election process.

It mandates the principle of equality in the number of votes, namely, one vote per person, and equality in their weight, that is, the extent that one vote contributes to the entire system of election (one vote, one value) (7-2 KCCR 760, 771, 95Hun-Ma224 and etc. , December 27, 1995). Also it means the denial of gerrymandering, or discriminatory constituency rezoning, designed to prevent a certain group of people’s political opinions from being reflected in the political process (10-2 KCCR 742, 747, 96Hun-Ma54, November 26, 1998; 10-2 KCCR 764, 773, 96Hun-Ma74 and etc., November 26, 1998).

B. Legislative Discretion in Constituency Rezoning and Its Limits Article 41(3) of the Constitution states that “the constituencies of members of the National Assembly, proportional representation, and other matters pertaining to National Assembly elections shall be determined by Statute,” thereby delegating the decision making power concerning details of the election system and constituency rezoning to legislative discretion. Therefore, a wide scope of legislative discretion is recognized in creating the National Assembly Election Redistricting Plan.

The legislature can take into consideration not only the population disparity, but also administrative districts, geography of particular area, traffic, living sphere, sense of historical or traditional solidarity, or any other policy or technical factors when realigning the electoral districts. Article 25(1) of the Public Election Act embodies such understanding as it states that “the local constituency for National Assembly shall be demarcated in the area under jurisdiction of the City/Province, in consideration of the population, administrative districts, geographical features, traffic, and other conditions…

.” Article 41(2) of the Constitution states that “the number of members of the National Assembly shall be determined by Act, but the number shall not be less than 200,” and Article 21 of the Public Election Act sets the full number of National Assembly seats, including all local constituency members and proportional representatives at 273. 227 members of the National Assembly are elected from local constituencies according to the relative majority representation system, and 46 proportional representatives are elected from one national constituency.

The total number of National Assembly seats, or the size of the legislature, is also a factor to be considered in rezoning the electoral districts. In other words, the legislature has to consider the fact that while the number of National Assembly seats should be more than 200 as stipulated by the Constitution, an excessive number of Assembly members would be detrimental to effective parliamentary activities. This means that the formation of an efficient and adequate legislative body should also be considered in constituency rezoning.

But, a wide scope of legislative discretion in constituency rezoning does not mean that the redistricting of electoral districts is free from constitutional control. In other words, the constitutional principle of equal election limits legislative discretion in such matters. First, the equality in the value of each vote is the most important and basic factor in constituency rezoning. Accordingly, unreasonable redrawing of electoral districts, violating the constitutional mandate of equal weight of votes, is arbitrary, and hence, is unconstitutional.

In this light, there is an inherent limit to legislative discretion in readjusting the electoral constituencies. On this point, the Court earlier ruled that “while the National Assembly may consider factors other than population, it is unconstitutional if there exists grave inequality beyond any reasonable limits in the value of votes among electors” (7-2 KCCR 760, 773, 95Hun-Ma224 and etc. , December 27, 1995). Second, gerrymandering is not within the constitutional limits of legislative discretion, and is unconstitutional.

Gerrymandering refers to an intentional discrimination of electors in a particular region through arbitrary division of electoral districts. It would be gerrymandering if electors in a particular electoral district lose opportunities to participate in political affairs, because of an arbitrary division of electoral districts, or if a district is redrawn to prevent the election of a candidate supported by electors from a particular region (10-2 KCCR 742, 748, 96Hun-Ma54, November 26, 1998; 10-2 KCCR 764, 775, 96Hun-Ma74 and etc., November 26, 1998).

The Court earlier ruled that “in redistricting the electoral constituencies, the legislature has to take into its consideration such factors as social, geographical, historical, economical and administrative association between localities, and an electoral district should be composed of a contiguous geographic area except for certain and inevitable circumstances.

” The Court further decided that unless there are inevitable circumstances, the redistricting of an electoral district by joining two completely separated localities without a common boundary, unless there are inevitable circumstances, was arbitrary and beyond the limits of legislative discretion, and hence unconstitutional (7-2 KCCR 760, 788-789, 95Hun-Ma224 and etc. , December 27, 1995). C.

Unconstitutionality of “Kyonggi Anyang Dongan-Ku” Electoral District Part of the Election Redistricting Plan (Equality in the Value of Each Vote) (1) Precedents on Population Disparity in Electoral Districts In the first case about permissible limits on population disparity in electoral districts (95Hun-Ma224 and etc. , December 27, 1995), the Court found the then National Assembly Election Redistricting Plan nonconforming to the Constitution, and suggested the following criterion for the constitutionality of population disparity in the constituencies.

In the decision, five Justices, Justices Kim Yong-joon, Kim Chinwoo, Kim moon-hee, Hwang Do-yun, and Shin Chang-on, ruled that the permissible maximum deviation of population in the National Assembly Election should be 60% of the average population of electoral districts, or the quotient of the national population divided by the number of electoral districts2), and that it would be unconstitutional to have a single electoral district which did not satisfy such population requirement.

Four Justices, Justices Lee Jae-hwa, Cho Seung-hyung, Chung Kyung-sik, and Koh Joong-suk, proposed to separate the electoral districts into the urban districts and the rural districts. The four Justices ruled that constituency redistricting which violates the 60% deviation of population limit and at the same time exceeds the 50% deviation limit in the same type of electoral district is beyond the limits of legislative discretion and hence, is unconstitutional.

Three Justices, Justices Kim Moon-hee, Hwang Do-yun, and Shin Chang-on, issued a concurring opinion to the majority opinion. In the opinion, three Justices pointed out that the legislature should take steps to remedy the existing population disparities among electoral districts within a reasonable period of time, and under the new Redistricting Plan, the largest electoral district should not have a population more than twice that of the smallest electoral district.

Furthermore, the three Justices suggested that the Court should employ a new criterion which sets the permissible maximum ratio of population between the most populous district and the least at 2:1 after a reasonable period of time. Justice Kim Chin-woo wrote a concurring opinion also stating that the Court should employ the permissible maximum ratio of population between the most populous district and the least at 2:1 from the next case on.

(2) Population Disparity in Electoral Districts in the Instant Election Redistricting Plan “Facts on the 16th National Assembly Election” published by the Central Commission on Election Management provides various statistical information regarding the election, including population of each electoral district as of March 22, 2000. (A table analyzing population 2). This would be equivalent to setting the permissible maximum ratio between the most populous district and the least at 4:1.

– Trans.ratio of each National Assembly electoral district is attached to Appendix 2, and a table analyzing population disparity in the electoral districts is attached to Appendix 3. The smallest electoral district in the instant Election Redistricting Plan, “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District, has a population of 90,190 (Strictly speaking, the number of qualified electors should be the basis of comparison, but since the number of electors is proportional to population in most cases, all figures hereinafter will be in terms of “population”).

On the other hand, “Kyonggi Anyang Dongan-Ku” Electoral District where the complainant resides has a population of 328,383, and this is 3. 64 times the population of “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District. The largest electoral district in the instant Election Redistricting Plan, “Kyonggi Uijongbu” Electoral District, has a population of 350,118, or a population 3. 88 times that of the “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District.

There are 154 electoral districts with a population more than twice the population of the smallest electoral district, and 45 of them have a population three times or more than the population of the smallest electoral district. The average population of electoral districts is 208,917 (National population, 47,424,300 ? number of electoral districts, 227). “Kyonggi Anyang Dongan-Ku” Electoral District, where the complainant resides in, has a population 57% more than this figure, and the smallest electoral district, “Kyongbuk Koryong-Kun and Seongju-Kun” Electoral District, has a population 57% less than this figure.

The largest electoral district, “Kyonggi Uijongbu” Electoral District, has a population 68% more than the average figure. There are 81 electoral districts with a population exceeding the permissible maximum deviation of ±33? % (equivalent to setting the permissible maximum ratio between the most populous district and the least at 2:1) or more from the average population of electoral districts. 30 of these districts have a population exceeding the permissible maximum deviation of ±50% (equivalent to setting the permissible maximum ratio between the most populous district and the least at 3:1) or more.

It is noteworthy that there are 10 electoral districts with population disparities of ±60% (equivalent to setting the permissible maximum ratio between the most populous district and the least at 4:1) or more (all of the cases exceeded the upper limit). This is directly against the holding in the 95Hun-Ma224 case in which the Court ruled that a population disparity of ±60% would be the maximum population under the Constitution. (3) Permissible Limit on Population Disparity

(A) In suggesting the permissible limit on population disparity, the Court could employ either the population of the smallest electoral district or the average population of electoral districts as a basis of comparison. In the 95Hun-Ma224 case, the Court chose to use the average population of electoral districts, following the provision of Federal Election Act of Germany, precedents of the German Constitutional Court, and the opinion of the Central Commission on Election Management, and this Court will maintain the decision.

(B) Next, the Court needs to decide whether to use different standards in reviewing the constitutionality of population disparities in urban electoral districts and rural electoral districts. In the 95Hun-Ma224 case, some Justices proposed to use different permissible maximum deviation standards for rural electoral districts and urban electoral districts. However, because it is not easy to distinguish an urban electoral district from a rural electoral district, such classification would be either improper or unnecessary.

Therefore, the Court will not distinguish between an urban electoral district from a rural electoral district when reviewing the instant case. However, the existing difference between population in urban and rural areas resulting from the concentration of population to urban areas should be taken into consideration when formulating the permissible maximum deviation of population in an electoral district.

(C) Population disparity in electoral constituencies is not a problem limited only to Korea, and over the years, the standards used to review the constitutionality of population disparities have become more exacting in countries around the world. In the case of Germany, Article 3(1)[3] of the revised Federal Election Act (Bundeswahlgesetz) stipulates that the deviation of population in an electoral district, from the average population of electoral districts, should not exceed 15% and that rezoning constituency rezoning is required if the deviation exceeds 25%.

In short, while setting the 15% deviation limit as a principle, and compelling the observance of 25% as a maximum deviation limit, the Act was flexibly legislated. When compared to Article 3(1)[2] of the old Federal Election Act, which stated that the deviation of population in an electoral district from the average population of electoral districts should not exceed 25% and that rezoning of constituencies would be required if the deviation exceeded 33? %, it is clear that the standard in reviewing the constitutionality of constituency rezoning has become more strict in Germany.

In case of Japan, Article 3(1) of the Act to Institute the Constituency Redistricting Commission for the Diet Election, enacted in February 4, 1994, stipulates that a revised redistricting plan should strive to achieve balanced population among electoral districts, that in the new redistricting plan, the number earned by dividing the population of the largest electoral district by that of the smallest should not exceed 2, and that consideration should be given to administrative districts, geography, traffic, and other special conditions.

(D) In the 95Hun-Ma224 case, the Court suggested some factors other than population to be taken into consideration when readjusting the national electoral constituencies. In the case, the Court first indicated that in Korea which adopts the unicameral system, a National Assembly member, while representing the Korean people as a whole, also represents the electors from a particular locality.

The Court also cited population disparity between urban and rural electoral districts resulting from population concentration in metropolitan areas and existing inequality of development in all spheres as reasons to be lenient in suggesting the permissible limit on population disparity. On the other hand, the Court stated that many votes are wasted under the election system currently employed by Korea, namely, the minor constituency system combined with the majority representation system.

The Court went on to point out that to permit excessive population disparities between electoral districts under such election system would significantly undermine the basis of the representative democratic system (7-2 KCCR 760, 775, 95Hun-Ma224 and etc. , December 27, 1995). Such conditions have not changed much since then. (E) Population remains the most important factor in redistricting constituencies, but secondary factors other than population have to be taken into consideration as well.

To set limits on legislative discretion in constituency rezoning, or more specifically, to suggest constitutionally permissible limits on population disparity in electoral districts, is a problem of easing the strict application of the principle of equality in the value of each vote by considering factors other than population. Considering all the factors we have seen so far, among the suggestions regarding the permissible limits on population disparity, the one that says a population that is within the 33?

% deviation limit equivalent to setting the permissible maximum ratio between the most populous district and the least at 2:1) would be still unconstitutional if there is no reasonable justification for such a disparity. This standard is too rigorous, and it is too early to adopt this suggestion as the standard for constitutional review of the Election Redistricting Plan under the present political realities in Korea.

To adopt the 60% criterion (equivalent to setting the permissible maximum ratio between the most populous district and the least at 4:1) five years after the Court adopted it in the 95Hun-Ma224 decision would be improper in the light of the concurring opinion of the case, suggesting employment of a more strict criterion in the future dispute, or the fact that the standard adopted by the Court in the instant case would serve as guidelines in revising the Election Redistricting Plan for the National Assembly Election in 2004.

It would be also against the worldwide trend of setting a more exacting standard to review the constitutionality of population disparities in electoral districts. Then, the Court could choose between two other options at this time. One is to set the permissible maximum deviation of population in an electoral district from the average population of electoral districts at ±33? %. The other is to set the maximum deviation at ±50% (in this case, the maximum ratio between the most populous district and the least populous district would be 3:1). Needless to say, the 33? % criterion is a superior option to achieve equality in voting rights.

But adoption of this criterion would entail many problems, because it would make it very difficult to consider factors other than population, such as administrative district divisions and the total number of seats in the National Assembly in constituency rezoning. The problem regarding division of administrative districts could be solved through revision of the current Public Election Act. While Article 25(1) of the Public Election Act stipulates that “… Ku/Shi/Kun shall not be partly divided and made to belong to another election district for the National Assembly member,” this is not a constitutional requirement.

Therefore, the provision would have to concede in order to achieve the constitutional requirement of equality in the voting rights, and revising the administrative districts itself could be considered. Article 41(2) of the Constitution only stipulates that the total number of seats in the National Assembly should be more than 200, so this number could be adjusted to remedy population disparities. However, in reality, formation of an electoral district by separating a part of an administrative district and adding it to another or increasing the total number of seats in the National Assembly would not be easy considering public opinion.

Also, as we have seen earlier, there are 30 electoral districts with a population exceeding the permissible maximum deviation from the average population of electoral districts of ±50% (equivalent to setting the permissible maximum ratio between the most populous district and the least at 3:1), but there are 81 electoral districts with a population exceeding the permissible maximum deviation from the average population of electoral districts of ±33?

% (equivalent to setting the permissible maximum ratio between the most populous district and the least at 2:1). Under such circumstance, it would not be difficult to predict that there would arise many problems if the Court adopted the 33? % criterion. It has only been 5 years since the Court first deliberated on the problem of population disparity in electoral districts, and a too idealistic of an approach disregarding practical limits would be imprudent. Therefore, the Court will review the instant case using the 50% criterion.

However, the Court would like to make it clear once more, as did three Justices, Justices Kim Moon-hee, Hwang Do-yun, and Shin Chang-on, in their concurring opinion to the majority opinion in the 95Hun-Ma224 case, that, while the legislature could take into consideration factors other than population such as administrative districts, the total number of seats in the National Assembly, population disparities between urban and rural districts when realigning the electoral districts, the legislature should take steps to remedy the existing population disparities among electoral districts to ensure that the largest electoral district does not have a population more than twice that of the smallest electoral district to uphold the constitutional principle of equal election.

The Court will employ the 33? % (equivalent to setting the permissible maximum ratio of population between the most populous district and the least at 2:1) or a more strict criterion after some time from now. (4) Unconstitutionality of “Kyonggi Anyang Dongan-Ku” Electoral District Part of the Election Redistricting Plan In case of “Kyonggi Anyang Dongan-Ku” Electoral District, it has a population 57% more than the average population of electoral districts. Such division of electoral districts is beyond the limits of legislative discretion, and violates the complainants’ constitutional right to vote and the right to equality. D.

Constitutionality of “Incheon Seo-Ku and Kangwha-Kun B” Electoral District Part of the Election Redistricting Plan (regarding gerrymandering) (1) Formation of the Instant Electoral District Before the Act on the Election of Public Officials and the Prevention of Election Malpractices was amended on February 16, 2000, the electoral districts in Incheon Seo-Ku, Kyeyang-Ku and KangwhaKun were divided to “Kyeyang-Ku and Kangwha-Kun A”, “Kyeyang-Ku and Kangwha-Kun B”, and “Incheon Seo-Ku” Electoral Districts.

Under such division, Incheon Seo-Ku as a whole formed an independent electoral district, and “Kyeyang-Ku and Kangwha-Kun A” Electoral District was formed of all of Kyeyang-Ku except Kyeyang-Ku Kyeyang 1-Dong. Kyeyang-Ku Kyeyang 1-Dong and the district of Kangwha-Kun formed the “Kyeyang-Ku and Kangwha-Kun B” Electoral District.

A constitutional complaint challenging the constitutionality of forming “Kyeyang-Ku and Kangwha-Kun B” Electoral District by separating only Kyeyang-Ku Kyeyang 1-Dong from Kyeyang-Ku and adding it to Kangwha-Kun was filed. In the 96Hun-Ma54 case decided on November 26, 1998, the Court ruled that the particular Election Redistricting Plan had an unconstitutional element because the legislature departed from the scope of legislative discretion in forming such electoral district, but considering lack of time in preparing the Plan for the 15th National Assembly Election and the temporary nature of such constituency rezoning, the Plan was held constitutional.

In the above case, the Court suggested that since Incheon Kyeyang-Ku and Kangwha-Kun were separated from each other by Incheon Seo-Ku and Kyonggi Kimpo-Kun (currently Kimpo-Shi), it would be more reasonable to form an electoral district by combining Kangwha-Kun with Ongjin-Kun which was geographically very close to and administratively very similar to Kangwha-Kun, or to form an electoral district by combining Kangwha-Kun and some parts of Incheon Seo-Ku which were geographically closer to Kangwha-Kun instead of Kyeyang-Ku.

Following the holding of the Court, the legislature made Kyeyang-Ku a single electoral district, combined Kangwha-Kun and Incheon Seo-Ku, and formed two electoral districts, namely, “Incheon Seo-Ku and Kangwha-Kun A” Electoral District, composed of all parts of Incheon Seo-Ku except Kumdan-Dong, and “Incheon Seo-Ku and Kangwha-Kun B” Electoral District composed of Kumdan-Dong and all parts of Kangwha-Kun, as it amended the Act on the Election of Public Officials and the Prevention of Election Malpractices through Act No. 6265 on February 16, 2000.

(2) Constitutionality of the Instant Electoral District Part of the Election Redistricting Plan According to the case records and “Facts on the 16th National Assembly Election” published by the Central Commission on Election Management, Firstly, Incheon Seo-Ku Kumdan-Dong and KangwhaKun both were parts of Kyonggi-Do, but became parts of Incheon Metropolitan City on March 1, 1995.<