» Kim Jong-cheol.

Sept. 24, 2009 may go down in history as the day when a new milestone was reached in the history of South Korean democracy. On that day, the Constitutional Court ruled that a provision in the Assembly and Demonstration Law forbidding nighttime assemblies as a rule and criminally punishing any violations does not agree with the Constitution. This marked a reversal of a 1994 ruling that found this provision constitutional.

This ruling is of very great Constitutional significance. The battle over the constitutionality and legitimacy of nighttime assemblies, between the police and prosecutors on one side and citizens on the other, has brought unnecessary conflict and instability upon South Korean society, and this struggle has ended with a victory by the citizens, based on the spirit of a liberal democratic Constitution. Even the 2008 candlelight vigil demonstrations, which provided the starting point for this ruling, led to around 1,000 indictments for their organizers and participants, and a significant number of these indictments cited the stipulation against nighttime assemblies. In some of these cases, the courts found the individuals guilty, while in others the cases are still pending in the first trial because of the recommendation for a constitutionality ruling that led to this situation.

That recommendation inspired Shin Young-chul, then head of the Seoul Central District Court and currently a Supreme Court justice, to intervene inappropriately in trials, which aroused public indignation. With this decision, modifications have become inevitable for the Lee Myung-bak administration’s distorted policy of strengthening law and order, which has turned back hard-fought efforts to win democracy and brought about a Constitutional crisis by either completely blocking or excessively policing the Constitutionally guaranteed freedom of assembly.

There is one unfortunate aspect to this decision, however. The provision that has a deadline of June 30, 2010 and was just found unconstitutional by the court will continue in effect until it is amended by legislators. In other words, even though the article is unconstitutional, they have enabled application of this law until legislators can rationalize how to offset the dangers that might occur from the full-scale permission of nighttime assemblies. Allowing this kind of provisional application is problematic because it does harm to the principles of due process and nulla poena sine lege by temporarily tolerating criminal punishment based on an unconstitutional law.

The National Assembly must therefore minimize the legal chaos by putting its top priority on amending this unconstitutional provision regarding nighttime assemblies. Additionally, they need to follow the spirit of this decision and minimize other toxic provisions that remain in the Assembly and Demonstrative Law that have excessively limited freedom of assembly or enabled the arbitrary exercise of police power. Legislative measures should be taken to control the right of the police to arbitrarily restrict assemblies, through amendment of a proviso on Article 8, Item 1 of the Assembly and Demonstration Law and the clause barring simultaneous assemblies in the same location. These items have enabled a prohibition of “excess assemblies” that has thus far been abused by police, and although it was previously ruled constitutional by the Constitutional Court, the regulation prescribing criminal punishment for violation of the obligatory reporting of assemblies needs to be downgraded to administrative punishment.

Meanwhile, the police have arbitrarily interpreted the prohibition on nighttime assemblies since the Lee administration took office, unreasonably hauling in citizens who wanted to assemble at night and disrupting the holding of assemblies. They must not neglect to engage in reflection on their misdeeds thus far, and they must work to reflect the spirit of the Constitutional Court’s decision. They should take into account the fact that the Constitutional Court only permitted provisional application of the provision in consideration of the potential dangers, and they should make specific plans to permit nighttime assemblies as a rule, while strictly applying the law on in cases where violations have been confirmed after the fact. Efforts also need to be made to establish a specific manual for intervention in assemblies and to make a rule of not shutting off assemblies completely.

The prosecutors for their part should reflect upon their excessive application of the Assembly and Demonstration Law and withdraw accusations based on an unconstitutional law. In addition, citizens should take care not to let assemblies become violent and unruly, so that we do not lose the legal space we have fought so hard to attain.

Freedom of assembly is a basic human right and an important indication distinguishing between a constitutional democracy and a totalitarian state. We hope this decision by the Constitutional Court will provide a starting point for straightening out the distorted “law and order” that has been put in place based on the Assembly and Demonstration Law.

The views presented in this column are the writer’s own, and do not necessarily reflect those of The Hankyoreh.