Korean court rules ban on rallies within 100m of presidential residence inconsistent with Constitution

Posted on : 2022-12-23 17:19 KST Modified on : 2022-12-23 17:19 KST
The court ruled that the provision restricted freedom of assembly and ruled that it be amended by May 31, 2024
Judges of the Constitutional Court of Korea sit at the bench in this undated file photo. (Kim Myoung-jin/The Hankyoreh)
Judges of the Constitutional Court of Korea sit at the bench in this undated file photo. (Kim Myoung-jin/The Hankyoreh)

The Constitutional Court of Korea has ruled that a legal clause prohibiting assembly near the president’s official residence is inconsistent with the Constitution as it excessively restricts freedom of assembly and demonstration.

The court concluded that banning all gatherings near the presidential residence, without having any exceptions, violates freedom of assembly, which is an essential component of attaining democracy.

The bench ruled that Article 11 of the Assembly and Demonstration Act, which levies a punishment of one year in prison or a fine of 1 million won (US$780) against those who “hold any outdoor assembly or stage any demonstration anywhere within a 100-meter radius from the boundary” of multiple official buildings, including the presidential residence, is unconstitutional as it violates the principle of proportionality.

While the court saw the legislative purpose, which is to protect the job and safety of the head of state, is justified, it found that banning all gatherings without exception is an excessive violation of fundamental rights, according to the ruling.

“The vicinity of the president’s residence is the place where people can most effectively convey their opinions, if they wish to express them to the president,” the court said in its decision. “Banning rallies near the president’s residence is not only restricting the places in which rallies can be held, but also restricts a key factor of the freedom of assembly.”

The court found that it was excessive to set the area near the president’s official residence as an area off-limits to rallies, and to ban rallies that do not pose harm.

“If a rally near the president’s residence is approved, public officials in charge of security and protection may suffer from some administrative inconveniences, but those inconveniences should be endured, considering that freedom of assembly is an essential component for the realization of democracy,” the court’s decision read.

The Constitutional Court also made a different judgment on the interpretation of the provisions of the Assembly and Demonstration Act made by the police, which have been banning rallies and demonstrations near the new presidential office in Yongsan.

The Assembly and Demonstration Act only prohibits rallies that are held within 100 meters of the president’s official residence, but interpretation of the legal provisions of that act are divided because in moving out of the Blue House, this administration has separated the president’s official residence from the president’s office.

The police have barred rallies near the presidential office in Yongsan, claiming that the president’s office should also be viewed as an official residence.

In response to that, the Constitutional Court stated in its decision that “the president’s official residence is a residential space for the president and the president’s family.” According to the decision, the court narrowly interpreted “official residence” as “public property used by the president and the president’s family for residential purposes. Since there are banquet rooms and reception rooms in addition to bedrooms and dining rooms, it is both a living space for the president and the president’s family as well as a place for the president to perform his or her duties.”

In other words, the court disagreed with the police’s interpretation, which reached beyond the scope of interpretation of the law.

However, since the case heard by the Constitutional Court was about the ban on rallies at the fountain in front of the Blue House at the time of the Moon Jae-in administration, it is not directly binding on the police’s notice of bans on rallies near the presidential office in Yongsan.

The Constitutional Court ruled that this section of the Assembly and Demonstration Act must be amended by May 31, 2024, so the National Assembly is likely to begin revising the bill next year.

The opinion of civic society is that the system ought to be improved to adequately guarantee the freedom of assembly.

“The Constitutional Court’s decision today puts the ball in the National Assembly’s court,” People's Solidarity for Participatory Democracy said in a statement on Thursday.

“The gradual progress on the freedom of assembly that citizens and groups have worked so hard to achieve has often been undone or reversed by the National Assembly, which has only strengthened the authority of the police and expanded the scope of their arbitrary interpretations.”

“The revision of the Assembly and Demonstration Act required by the Constitutional Court’s decision needs to do more than remove a minimum of risk.”

After the Constitutional Court ruled in June 2018 that a prohibition on assemblies near the office of the prime minister was unconstitutional, the National Assembly revised the law ambiguously, only allowing assemblies that “do not target the prime minister and that are unlikely to escalate on a large scale.”

“Given the debate about how ‘official residence’ should be interpreted in regard to assemblies and demonstrations near the presidential office, it’s too bad that the Constitutional Court didn’t reach its decision a little faster,” said Kim Seon-hyu, an attorney who has filed an administrative lawsuit against the police ban on assemblies near the presidential office.

Kim went on to say that “the law needs to be revised in accordance with the Constitutional Court’s ruling [that the freedom of assembly must be guaranteed].”

By Shin Min-jung, staff reporter

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

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