Some judges in the judicial branch are provoking a political and legal dilemma, whether or not public officials have liberty to express their political opinions in such controversial spheres as SNS or Social Networking Service. Our constitution, the most fundamental governing principle of the nation, unequivocally articulates that every citizen has the inalienable right to liberty to express his or her political opinions (Article 21). The constitution, however, also explicitly states that the political impartiality of professional (non-elected) public officials must be protected to serve for the interest of the entire public (Article 7). According to these two principles well combined, we can have a simple, right answer to the dilemma that the judges as private citizens have the liberty and yet they do not as public servants.

As many legal experts argue, the real issue in this debate seems to be on how to define the character of the ambiguous sphere, SNS. In this place-centered approach, many believe that if SNS is not a private place, the judges are to be restrained as public servants. This debate on the character of SNS, however, looks helpless. The nature of SNS and the reason for its popularity reject any private-public dichotomy of its character. People are using SNS to freely communicate with both known and unknown others beyond private and public distinctions. SNS is a free sphere that denies any arbitrary definition.

If SNS is an undefinable place, where should the debate go? As a professor of public affairs, I am not happy with the widespread idea that the character of SNS would enable us to decide the legality of public officials’ free speech. I believe this place-centered approach misleads us into ignoring the genuine constitutional issue that underlies the dilemma. The constitutional concern for the political impartiality is not about whether public officials as private citizens express their political opinions in private or public places, but all about how public officials can be protected from arbitrary political powers to do their businesses in impartial ways to serve for the entire public. For example, the current regime is notorious for its partial and arbitrary management of public officials. Public officials under the partisan management are forced to be partial and betray the interest of the entire public. It is the genuine purpose of the constitutional principle to protect public officials from this kind of arbitrary political power. We know that almost all public officials as private citizens are politically partial and divided as much as ordinary citizens. It is also true that the constitutional provision of the impartiality does not require public officials to be politically impartial in private. The constitutional principle is based on the enlightened belief in the moral faculty of human beings who can be impartial beyond their partial inclinations and preferences. As long as public officials are doing their public duties in impartial ways, it is not a constitutional issue that public officials as private citizens can express their political opinions in public and private places.

By Cho Jung-kwan, Associate Professor, Dept. of Political Science and Diplomacy