Revisiting the Constitutionality of the Voting Rights of Overseas Koreans

Abstract

After the Constitutional Court of Korea ruled in June 2007 that it was "incompatible with the Constitution to limit voting rights to citizens on the condition of residential requirements in Korea," voting rights were granted to overseas Korean nationals following amendments to related regulations under the Public Official Election Act in 2009. According to the Constitutional Court ruling in 2007, overseas Koreans must be able to exercise their voting rights based on the constitutional principles of democracy and protection of fundamental rights. This study attempts to critically examine the Constitutional Court's decision of 2007 by focusing on a theoretical understanding of democratic principles and the fundamental rights theory. With regard to the principles of democracy, overseas Koreans may be constitutionally deprived of or denied their voting rights if the range of demos is determined based on the democratic value of the rule of law. In terms of fundamental rights, the limitation of suffrage is generally subject to a strict constitutional review, but a less stringent process may be involved in voting restrictions of overseas Koreans because restrictions are generally reflected in the political values between countries.