hankyoreh

the first nighttime demonstration after a Supreme Court ruling that found nighttime demonstrations illegal. The Assembly and Demonstration Act had prohibited nighttime protests

By Noh Hyun-woong, staff reporter

After the Constitutional Court ruled on the “limited unconstitutionality” of Article 10 of the Assembly and Demonstration Act, which says that “no one may hold any outdoor assembly or stage any demonstration either before sunrise or after sunset,” the Supreme Court concurred, finding that people cannot be prosecuted for participating in demonstrations that take place before midnight, even when the sun has already set.

On July 10, the third division of the Supreme Court, with Hon. Kim Shin presiding, overturned a lower court’s decision to fine Seo Chang-ho, secretary general of Human Rights Solidarity, 700,000 won (US$686). The Supreme Court remanded the case to the Daegu Local Court. Seo had been arrested for organizing a candlelight vigil and a march blaming the government for the Yongsan tragedy from 7:15 to 9 pm in in Sept. 2009.

The Yongsan disaster, as it is known today, refers to a confrontation that took place in Seoul’s Yongsan district. Evicted residents had seized control of the building and were holding a sit-in protest when the police attempted to break up the protest, the structure caught fire, and five of the protestors and one member of the police SWAT team died.

In March, the Constitutional Court ruled that the clause in the Assembly and Demonstration Act that forbids nighttime demonstrations is of limited unconstitutionality “insofar as it can be interpreted as banning demonstrations from sunset to midnight.” A ruling of limited unconstitutionality is a hybrid legal decision that allows the law to stand while declaring that it is unconstitutional if the problematic clause is interpreted in a certain way.

But this is an issue about which the Supreme Court and Constitutional Court do not see eye to eye. The Supreme Court refuses to acknowledge the validity of decisions of limited unconstitutionality, arguing that interpretation of the law is the sole prerogative not of the Constitutional Court, but of the courts. In other words, the Supreme Court holds that the Constitutional Court does not have the authority to dictate how legal passages ought to be interpreted.

“The ‘from sunset to midnight of the same day’ clause that the Constitutional Court found to have limited unconstitutionality must be understood as being a partial violation of the constitution, despite the means by which this ruling was expressed. Therefore, this is valid as a ruling of unconstitutionality as defined in Article 47 of the Constitutional Court Act,” the Supreme Court said in its recent ruling.

In effect, the Supreme Court agreed with the spirit of the Constitutional Court’s ruling of limited unconstitutionality, which found that the scope of the sunset to sunrise limitation was too broad, excessively infringing on the right to assembly and demonstration. However, the Supreme Court objected to the wording of the decision, and accepted it not as limited unconstitutionality, but as partial unconstitutionality.

“The ruling was about the unconstitutionality of one part of the law that says ‘from sunset to midnight,’ and no other interpretation is possible. That is why the court concluded that this was a ruling of partial unconstitutionality. There are no changes to the Supreme Court precedent that rulings of limited unconstitutionality are invalid,” a spokesperson for the Supreme Court said.

Due to the Supreme Court’s decision, it is likely that those who are only being tried for taking part in a nighttime demonstration will be cleared of charges. There are about 390 such cases around the country, but courts at various levels have been delaying the judgment of guilt or innocence even after the Constitutional Court made the ruling of limited unconstitutionality. This also makes it possible for people who have been found guilty of violating the clause in question since the revision of the law in May 2007 to request a retrial and receive legal relief.

“By reinterpreting the decision of the Constitutional Court, the Supreme Court seems to have made a forward-looking ruling. It would have been better if the Constitutional Court had made a ruling of simple unconstitutionality or inconsistency with the constitution, which would have left no room for debate,” said Lee Ho-jung, law professor at Sogang University.

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