Law suspending Lee Kwang-jae from service is unconstitutional, court says

By Noh Hyun-woong, Writer

The Constitutional Court decided Thursday that a law barring Gangwon Province Governor Lee Kwang-jae from taking office until after a Supreme Court ruling is made, is not in accordance with the Constitution. The court viewed parts of the current Local Autonomy Act as unconstitutional, as it goes against the constitutional principle of presumption of innocence. Paragraph 4 of Article 27 of the Constitution says, “ The accused are presumed innocent until a judgment of guilt has been pronounced.”

The Constitutional Court ruled that even if a local government head receives a prison sentence, if the charge is not so great as to collapse the legitimacy that the entrusted authority wields as a public servant, he must be allowed to continue in his post until his sentence is confirmed. The court said the standard for suspending the performance of duties prior to the confirmation of a sentence is “cases in which the charges collapse the very legitimacy of the entrusted civil servant authority.” Charges worthy of stopping a civil servant from performing his duties are interpreted as charges related to one's job and crimes related to an election.

The Constitutional Court said that the current Local Autonomy Act, which calls for a civil servant’s duties to be suspended even prior to the confirmation of a decision by the court, mixes unconstitutional and constitutional elements and called for the National Assembly to correct this. A court official said that legislating is completely up to the National Assembly, but the goal of the court’s decision appears to be telling the National Assembly to limit the crimes that get a local government head suspended to only those crimes related to his duties or elections.

Most of the Constitutional Court officers, however, judged the article itself to be unconstitutional. Five judges, including Lee Kang-kook, said that the constitutional principle of presumption of innocence should be interpreted as meaning that one cannot give tangible and intangible disadvantages based on the presumption of guilt, and not just in criminal proceedings. This means that the relevant article of the law is completely at odds with the principle of presumed innocence.

A majority of judges also determined that the lack of the same provision regarding National Assembly members, who are also elected civil servants, violates the principle of equality by excessively restricting heads of local governments only. They judged that while National Assembly members are allowed to continue performing their duties even after receiving a sentence in a lower court that would nullify their election, the strict standard is applied only to local government heads.

Prior to this, in 2005, the Constitutional Court ruled that the same article was constitutional, with four judges ruling it unconstitutional, four judges ruling it constitutional and the ninth dismissing the case. At the time, the court ruled that the purpose of the law, to prevent a vacuum in local administration, was legitimate, and that one could restrict basic rights for public interest purposes. It appears, however, that with the local government system maturing, the court’s point of view has moved toward placing more weight on local residents’ expressions of support.

In particular, Justice Cho Dae-hyen, who ruled the article was not in accordance with the Constitution, said in the text of his ruling that Governor Lee was sentenced to prison on charges of violating the Political Funding Act, but it’s hard to see how those charges delegitimize his election as governor or betray the essence of the election’s entrusting him with the related duties. He said preventing Lee from carrying out his duties was an unfair violation of his authority as a civil servant and the presumption of innocence. He said that because the people of Gangwon Province supported Lee even though they knew about his conviction, Lee’s carrying out of his authority as a civil servant was legitimate.

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