NHRCK Expresses Opinion to the Minister of Public Administration and Security Concerning the “Bill for Partial Amendment to the Regulations Concerning Official Duties of National Civil Servants”
November 17- The NHRCK expressed its opinion on November 10, 2009 to the Minister of Public Administration and Security that the “Bill for Partial Amendment to the Regulations Concerning Official Duties of National Civil Servants” (“amendment bill”) announced on Oct. 21 2009 in advance of submission to the legislature is not desirable on the grounds that its expression is unclear and vague which can lead not only to disadvantages to the position of civil servants in society due to arbitrary interpretation and implementation but also infringement their constitutional freedom of expression.
The amendment bill prohibits “civil servants from using the name of the organization as an individual, group, joint signature or staff of the organization, including claiming or opposing certain policies with a politically oriented purpose which is unrelated to the performance of official duties or disturbing the making and implementation of policy decisions of national institutions” (Article 3, paragraph 2), and prohibits “the wearing of clothes that contain political slogans which can cause discomfort to civil petitioners or harm the working environment” (Article 8-2, paragraph 1).
□ The basic human rights of civil servants should be guaranteed as persons who are also citizens
Because a public servant, as a person who is also a citizen, is the subject of basic human rights, the state cannot arbitrarily restrict the basic rights of public servants. The Constitutional Court has similarly stated “given that civil servants as individuals possess the freedom to stand as a candidate for a public election or to help a spouse, relatives, etc. with the planning of an election campaign, it is not desirable to restrict the freedom of political expression and election campaigning of civil servants based only on a probability of interference in election fairness,” holding that “the public interest in election fairness through the exclusion of the biased influence of civil servants may be satisfied through the prohibition of election campaigns that make use of the status and influence of the civil servant, and as such, prohibiting the planning of an election campaign with no regard as to whether the status of the civil servant is utilized, heavily restricts the individual right to freedom of political expression.” (Constitutional Court, 2006 Hun Ma 1096, May 29, 2008)
□ Restrictions on the freedom of expression
Freedom of expression, which is guaranteed by the International Covenant on Civil and Political Rights and the Constitution, is “a fundamental and necessary element of a democratic system” and the Constitutional Court has stated that "the ability of members of society to express their thoughts and opinions freely is the basis of all democratic society, and democratic government can never be expected if an open space for the free exchange of thoughts is not guaranteed.” (Constitutional Court, 95 Hun Ga 16, April 30, 1998)
Even though civil servants are required to be politically neutral, they cannot be an exception to the guarantee of freedom of expression. This is because “civil servants possess freedom of political expression as individuals.” (Constitutional Court, 2006 Hun Ma 1096, May 29, 2008).
However, the amendment bill prohibits opposition to government policies unrelated to the performance of official duties and the wearing of clothes that contain political slogans, and thereby creates a new form of political expression requiring a prohibition that is not consistent with Article 65 (prohibition of political acts) of the “State Public Officials Act” and its delegated “Regulations on the Duties of State Public Officials” Article 27 standard for prohibiting “political acts.” Similarly, the amendment bill restricts the constitutional freedom of expression so it is obvious that it needs to follow the “principle of prohibition of excessive restrictions” and the principle of prohibition on generally delegated legislation based on Article 37(2), and Article 75 of the Constitution.
□ High risk of violation of the “principle of prohibition of excessive restrictions”
However, the amendment bill additionally prohibits all freedom of political expression while the Constitution regulates the political acts of civil servants, and related provisions, such as Articles 65 and 66 of the “State Public Officials Act” and Article 27 of the “Regulations on the Duties of State Public Officials,” etc., provide other legal methods. It is very difficult to see a reasonable balance between the interests accomplished by the aim of establishing order in the public servants’ work and the method utilized (infringement of individual interests), and as such, there is a high risk of determinations that do not conform to the principle of prohibition of excessive restrictions which is based on Article 37(2) of the Constitution. Also, in spite of the holding that “everyone needs to be able to predict the contents of a presidential decree or lower provisions delegated by law” (Constitutional Court, 93 Hun Ga 12, July 29, 1994), the contents of the amendment bill cannot be seen as coming within an acceptable range of predictability, so it is likely that the contents exceed the range delegated by Article 65 and 67 of the “State Public Officials Act,” which are the basis for the regulations.
Moreover, violation of duties under the “Regulations on the Duties of State Public Officials” serves as the basis for imposing disciplinary punishment on civil servants, therefore to civil servants the provisions themselves violate interests of them, resulting in disadvantages to their status such as dismissal, and language in the amendment bill such as "politics oriented," "assertion," "opposition," etc., expresses ideas that are too general and unclear thereby enabling arbitrary interpretation and implementation by persons interpreting the language, which violates the “principle of definitude.”
□ Conclusion
Therefore, since there is a high risk that the amendment bill will infringe on the constitutional freedom of expression that civil servants possess as individuals, that it enables arbitrary interpretation and implementation in the operation of the bill, the NHRCK determined that the amendment bill has a high risk of infringing on the basic rights that civil servants should enjoy as individuals and expressed its opinion that the current form of the amendment bill is not desirable.
