hankyoreh

a National Policy Agency commissioner

Critics are out in force calling the government’s policy of banning large-scale assemblies in urban areas an unconstitutional measure violating Article 21 of the Constitution, which guarantees the freedom of assembly. Civic and social groups plan to submit a petition over its constitutionality to the Constitutional Court, while legal scholars are commenting on the unconstitutionality of the government’s measure based on prior Constitutional Court decisions.

The government announced on Wednesday that large-scale assemblies in urban areas would no longer be permitted.

The Network of Civic Organizations for Keeping Democracy Alive and Stopping Suppression, an umbrella organization comprised of over 80 civic and social groups including People’s Solidarity for Participatory Democracy (PSPD) and the Democratic Labor Party, issued a statement Thursday regarding the government’s announcement. They said, “It is unconstitutional to block the freedom of assembly and demonstration, which is a democratic right of citizens to actively participate in the political process, and precious channel of communication through which the people exercise their sovereignty.” The statement also indicated plans for submitting a petition challenging the constitutionality of the government’s ban on assemblies in urban areas, and a full-scale “disobedience campaign.”

Legal scholars are also coming out en masse presenting the view that banning all assemblies in urban areas based solely on the possibility that they might turn into violent demonstrations goes against prior Constitutional Court decisions.

In an October 2003 ruling that found an article of the Assembly and Demonstration Act banning assemblies within 100 meters of embassies and other diplomatic institutions unconstitutional, the Constitutional Court had stated, “Banning and dispersing assemblies is a last resort method that can only be considered after all other less restrictive means on the freedom of assembly have been exhausted.”

Chung Tae-wook, a professor at Inha University’s Law School, said, “Banning all assemblies simply based on place and scale, prior to establishing the fact that the assembly could cause concrete danger, represents an excessive use of power and poses very strong grounds for its unconstitutionality.”

Subsequent criticisms also contend that the government is interpreting the Assembly and Demonstration Act in an arbitrary manner. In January 1992, the Constitutional Court ruled unconstitutional an article in the law that allowed ban notices to be given in for assemblies and demonstrations that were deemed to be associated with terms like “social unease,” “concerns,” and “conspicuous.” Their decision found that this vague wording was used to infringe upon essential content in the people’s freedom and rights of assemblies and demonstrations. Following the Constitutional Court’s decision, the text of the passage in the law regarding assembly bans was changed to its present wording, which states that ban notices may be given for “assemblies and demonstrations that will obviously present a direct threat to public order, e.g., through collective violence and intimidation.”

“The amended article states that when citizens’ basic rights are limited, it must follow a principle of ‘clear and present danger’” said Park Keun-yong, director of PSPD’s legal monitoring team. “In order for such a judgment to be possible, it must confirmed that there is a danger present at the scheduled assembly site, along the lines of people walking around with metal pipes and Molotov cocktails,” Park added.

Some quarters are even expressing concerns that if the government follows through on its ban, democracy in South Korea’s society could deteriorate to levels found in the 1970s and 1980s. Prior to democratization, the Assembly and Demonstration Act maintained the nominal framework of a “reporting system,” but it specified “assemblies where there is concern of effects on the outcome of trials” and “assemblies that go against the basic democratic order of the Constitution” as targets for bans and dispersal. It had even specified that “assemblies that could disrupt the functions of public agencies” were subject to prohibition.

Some of these fears are becoming reality. The Solidarity for Peace and Reunification of Korea (SPARK) group has been holding an anti-U.S. solidarity assembly in front of the KT building in Seoul’s Gwanghwamun every month since October 1999, but this month they were suddenly served with a ban notice. Yu Young-jae, head of SPARK’s committee that addresses problems surrounding the U.S. bases said “assemblies similar to the ones we have held peacefully on over 112 occasions have been disallowed.” Yu added, “It feels like maybe our society is reverting back to the 1970s.”

SPARK plans to file an objection with the Seoul Metropolitan Police Agency, and if that is not accepted, they plan to file an administrative lawsuit calling for a withdrawal of the assembly ban.

Please direct questions or comments to [englishhani@hani.co.kr]