Author: Jeong-Gon Kim
Providing all qualified voters with an equal opportunity to cast a direct and secret ballot, the democratic electoral system was first introduced in Korea for the election of Constitutional National Assembly members in 1948. When the Korean government was founded, the Election Commission was part of the executive branch, and its impartiality was difficult to secure. Consequently the Election Commission was re-established by the fifth revision of the country’s constitution as an independent constitutional agency in 1963, during the Third Republic of Korea.
Background
In the beginning, the Election Commission focused on the fair management of elections and referendums in accordance with election laws, as well as the promotion of voter sovereignty. In 1973 the Election Commission, then bureau level, was expanded and raised to the status of vice minister level.
With the introduction of direct elections in the 13th presidential election in 1987 and progress toward democracy, the freedom of election activities was greatly increased. Yet illegal campaign activities skyrocketed as well. In order to ensure free, fair and credible elections, the Election Commission strictly enforced election laws, and these efforts received public support. Its authority to control illegal campaign activities was expanded and stipulated in writing in 1992. The commission continued its strict enforcement of election laws and strengthened its investigative authorities. In 1987, a constitutional revision gave the commission the right to enact internal regulations. In 1992, the Election commission Act was revised to allow the commission to submit a bill to the National Assembly when it is necessary to enact a new law or amend an existing law concerning elections. The revised act also upgraded the status of the Commission to the ministry level, and it was restructured accordingly.
In 1996 the National Election Commission (NEC) — the top tier of the Election Commission — established the Korean Civic Education Institute for Democracy and has offered civic education programmes for political parties, candidates and the general public since then. The Election Commission has managed and supervised elections for members of the Education Committee as well as the superintendent of education.
The 2004 election for the 17th National Assembly members was a turning point for free, fair and credible elections; it abolished costly local party branches and some of the campaign methods. In order to prevent illegal campaigns, cash rewards were given to those who reported election law violations. Administrative fines were imposed on those who received illegal contributions (e.g. money, food) from candidates. These efforts helped ensure free, fair and credible elections.
The NEC also established the Election Broadcasting Debate Commission (EBDC) and the Internet Election News Deliberation Commission (IENDC). The EBDC encouraged active discussion and debates among political parties, while the IENDC monitored Internet media to ensure accurate reporting of facts. The Election Commission’s authority was further strengthened to investigate the illegal use of political funds and to request the inspection and submission of communication documents. The commission also introduced a cyber-election surveillance unit for election law violations.
Beginning with the management of a residents’ referendum in 2004, the commission has been entrusted with managing elections for the heads of local agricultural, livestock, fisheries and forestry cooperatives as well as the presidents of national universities since 2005. In 2006, the commission started to manage residents’ recall votes concerning the heads of local governments and council members.
With the 2010 revision of the Act on the Maintenance and Improvement of Urban Area and Dwelling Conditions for Residents, the Election Commission’s responsibilities now include management of elections for non-public offices, such as board members of housing-related organizations.
The Election Commission has expanded its role in international cooperation by joining the Association of Asian Election Authorities (AAEA) in 2008 and became the chair in 2011. It also signed memoranda of understanding with electoral management bodies in other countries to establish mutually cooperative relationships in the field of elections. The commission has also hosted seminars and training sessions for foreign election officials to share the views and experiences of different electoral practices.
With the amendments made to the Public Official Election Act in 2009, Korean citizens visiting or residing in foreign countries (including those with a permanent residency visa) can vote in the presidential and National Assembly elections.
The Legislative Framework
In accordance with the provision of Article 114, paragraph 1 of the country’s constitution, the NEC was established in the Election Commission Act of 1992 as an independent constitutional agency compatible with the National Assembly, the government, the courts and the Constitutional Court of Korea for the purpose of managing fair elections and national referenda, and dealing with administrative affairs concerning political parties and political funds. The Election Commission Act states regulations on the establishment and duties of Election Commissions at each level, appointment procedures and qualifications of election commissioners, and the chairperson’s and full- time commissioner’s authority and roles.
The NEC, after self-examination regarding the illegal election of 15 March 1960, became a constitutional agency following the enactment of the Fifth Constitutional Amendment in 1963. The term and status of each election commissioner is strictly guaranteed, as prescribed in the constitution and act, to guarantee the fair execution of duties without any external interference.
Institutional Structure and Professionalism
The Election Commission of Korea is an electoral management body with permanent nationwide organizations. The Election Commission has a four-tier structure consisting of the NEC at the top, Si (special metropolitan, metropolitan city)/Do (province) election commissions (ECs), Gu (district)/Si (city)/Gun (county) ECs, and Eup/Myeon/ Dong (township) ECs. Overseas Voting Committees are set up at Korean overseas missions for presidential and National Assembly elections. Currently, there are 16 Si/ Do ECs, 251 Gu/Si/Gun ECs and 3,470 Eup/Myeon/Dong ECs.
The NEC is composed of nine commissioners, including one chairperson and one full- time commissioner. Since the chairperson, who is a current Supreme Court justice, does not serve full time, a minister-level commissioner serves full time to assist the chairperson and oversee the secretariat.
The secretariat, including a minister-level secretary general and a vice minister-level deputy secretary general, is composed of two offices, one bureau, six departments and 27 divisions, and the Korean Civic Education Institute for Democracy for democratic civic and political education. The IENDC and EBDC are subordinate to the NEC. The 16 Si/Do ECs have one full-time commissioner who is a ranking public official, commissioners who do not serve full time, a secretariat and the EBDC. The secretariat is headed by a director general, and has four divisions. The 251 Gu/Si/Gun ECs are members of the commission and have a secretariat. The members of Gu/Si/Gun commissions do not serve full time.
With the exception of the full-time NEC commissioner, the election commissioners do not serve full time. Therefore, each election commission at all levels has a secretariat that deals with electoral affairs. All employees of the EC secretariats are public servants who have passed the civil service exam. The full-time commissioner of the NEC and the head of the secretariat and secretary general are all minister-level officials. While commissioners have a short term of office of six years and do not serve full time, public servants at the secretariat have both expertise and many years of experience in electoral management, which gives them a certain degree of independence from the commissioners in terms of their duties at work. Moreover, except for matters requiring a decision of the commission (e.g. rules and regulations of duties of the election commission, rules on delegation and arbitration, candidate registration, announcement of the election results, decision of the elected, revision and enactment of the rules, changes in precedents), its powers and duties are delegated to the secretariats, which can handle the responsibilities with autonomy and independence.
The secretariats’ autonomy is fundamental to carrying out their duties impartially, and helps provide independence from the legislative, judicial or executive branches as well as political parties or factions.
Powers and Functions
The NEC may issue regulations relating to the management of elections, referenda, administrative affairs concerning political parties within the limit of acts relating to the management of elections, and internal disciplines that are compatible with the Electoral Act (article 114, paragraph 6 of the constitution).
While guaranteeing equal opportunities to parties and candidates and complying with proper election processes, the ECs are engaged in prevention activities that help people comply with the election laws and strictly monitor and control the activities that impede fair elections.
In particular, the commissioners and employees of an EC are given the authority to investigate any violation of the Public Official Election Act or Political Funds Act, to collect evidence of such violations, and to ask the person in question to present him/herself at the EC office. When they suspect a violation, the election officials may request relevant institutions to submit financial transaction and communication records. Administrative fines may be imposed as a result of election law violations, and a halt or correction order or warning may be issued. When a halt or correction order or warning is not carried out, or when there are election law violations that are deemed to greatly harm the integrity of an election, the case will be brought to the prosecutor’s office.
In addition, democratic civic and political education programmes are offered to encourage voters’ participation in the electoral process and to help them exercise the right to vote, and to help realize democracy in everyday life.
There have been frequent enactments and amendments of the Public Official Election Act, Political Parties Act and Political Fund Act according to political interest and policies or political compromise. The NEC submits bills about laws and amendments that run counter to the interests of political parties in the National Assembly after paying careful attention to public opinion trends.
Financing
When preparing budgets for independent agencies including the NEC, National Assembly, the Supreme Court and the Constitutional Court, in accordance with article 40 of the National Financing Act, the monetary authority shall ask for the opinions of the heads of independent agencies on the budget and respect their opinions to the greatest extent possible.
When preparing budgets, monetary authorities tend to reduce budgets to only the essential expenses. However, expenses for public official elections are not excessively adjusted, since they are usually for procedural administrative work set by law. Also, as discussions and coordination between the monetary authority and the NEC take place during the process of deliberation, the expenses required to conduct fair elections are usually reflected in the budget without reduction.
The monetary authority submits a budget proposal to the National Assembly after consultation with the NEC. The Assembly votes on the budget proposal and makes a final decision after deliberating on (and increasing/decreasing) the budget. The monetary authority or the National Assembly is not allowed to reduce the finalized budget.
Relations with Other Institutions and Agencies
According to article 115 of the constitution and article 5 of the Public Official Election Act, the ECs at all levels may request assistance from relevant administration agencies such as the government, local governments and public agencies concerning the management of elections, including personnel/equipment support, promotion of elections, crackdown on electoral offenders, etc. The agencies, if asked for support, shall prioritize its provision.
Electoral Reform Management
Under article 17, paragraph 2 of the Election Commission Act, the NEC has progressively contributed to improving legislation in order to guarantee the public convenient and fair elections, improve the electoral system and resolve inconveniences by putting forward propositions on the Public Official Election Act.
The NEC submitted an amendment bill on the Public Official Election Act to the National Assembly in 2008, and the act was revised. The purpose was to promote free elections by guaranteeing overseas voters’ rights and expanding the range of Internet election campaigns and preliminary candidates’ election campaigns. The amendment bill also included the establishment and operation of the Broadcasting Deliberation Committee and stipulated more rigorous regulations against negative campaigning, including defamation and false propaganda.
In 2009, the NEC submitted another amendment bill to the National Assembly to further revise the Public Official Election Act. This amendment bill was proposed in order to enhance the freedom of election campaigning by easing regulations on political party activities and candidates’ election campaigns.
The Constitutional Court ruled in 2011 that banning the Internet in election campaigns was a violation of the constitution. In 2012, the NEC decided to allow the use of social networking services in election campaigns at any time, and the National Assembly referred to this decision when revising the Public Official Election Act in favour of the NEC’s determination. Allowing online campaigning year-round (except on election day) has expanded the range of voters’ free expression on politics. Under the new guideline, candidates and their supporters can stage campaign activities using Internet portal sites, blogs, emails, mobile messages and social networking sites.
