Counter-arguments to the existing interpretation of Article 7 of the Constitution : Critical Consideration of the Servant of the Whole People as a Rationale for Restricting the Freedom of Political Expression of Public Officials

This article re-examines whether the ‘service to the people at large’ provision in Article 7(1) of the Constitution can serve as a constitutional basis for restricting the freedom of political expression of public officials, and the scope and limits of the ‘duty of political neutrality’ derived from it. While existing jurisprudence and case law have provided logic to support the restriction of the fundamental political rights of public servants directly or indirectly from the concept of service, these analyses point to the abstractness of the concept of service and the fallacy of circular reasoning. In examining the Constitutional Court's jurisprudence justifying the current system and interpretation of the law by invoking multiple arguments, including the service of the entire population, the specificity of the status and duties of public officials, and the pursuit of public interest from a neutral position, the article criticises that this results in an overly comprehensive and uniform restriction of political fundamental rights and is only an ex post facto and comprehensive justification of the current situation. Article 7(2) of the Constitution stipulates the ‘guarantee of political neutrality,’ and interpreting it as a ‘duty of political neutrality’ or a blanket ban on all political activities by public officials is not justified by the text and structure of the Constitution. The historical perspective reminds us that this provision was originally enacted as a reflexive measure in the wake of the 3-15 fraudulent elections to protect public officials from power and to secure the independence of the executive, and the comparative legal perspective suggests that it is possible to impose differential and proportional restrictions and guarantees, such as the duty of constitutional fidelity and the duty of moderation and restraint, using the German example. In conclusion, this article derives the duty of public service from the concept of public servant in Article 7(1) of the Constitution, interprets this constitutional duty of public service as justifying the imposition of various legal obligations, including the duty of political neutrality, and explains that the guarantee of political neutrality by law in Article 7(2) of the Constitution refers to a state of affairs in which the freedom of political expression of individual public servants is guaranteed to the extent necessary in accordance with the principle of proportionality in Article 37(2) of the Constitution, and is applied in a proportionate and differentiated manner, taking into account the high status of the public servant, the nature of his or her duties, and the importance of his or her duties.