Ban on Outdoor Night Rallies Ruled Unconstitutional

The Constitutional Court yesterday struck down a government ban on outdoor rallies at night, and also ruled against police chiefs permitting such protests when reported to authorities in advance and with the people in charge maintaining order.

The court ruled in a 5-2 vote that Article 10 banning night outdoor rallies and Article 23 stipulating penalties for violation are unconstitutional.

The ruling said the two articles will remain valid through the end of June next year, asking the National Assembly to revise them by June 30. The clauses on the ban and penalty will be automatically annulled unless revised by the deadline.

○ ‘Excessive restrictions’

The court said the articles are unconstitutional because it is excessive to restrict the time to “before sunrise or after sunset,” though the ban’s purpose is justified to ensure peace in housing and privacy and to protect social order.

Justices Min Hyeong-ki and Mok Yeong-joon, who said the contentious clauses violate the spirit of the Constitution, said in their opinion, “Banning outdoor rallies over an extensive and variable timeframe such as ‘before sunrise and after sunset’ effectively blocks office workers or students from hosting or participating in assemblies, thus depriving them of the freedom of assembly guaranteed under the Constitution.”

“There is no problem in attaining the purpose of the law even without setting extensive timeframes in which assemblies are banned. It is desirable to let legislators determine at their own discretion that timeframes are the most appropriate for which outdoor rallies must be banned to minimize the restriction of freedom of assembly yet attain the purported goals.”

Justices Lee Kang-kuk, Lee Gong-hun, Cho Dae-hyeon, Kim Jong-dae and Song Du-hwan said in their opinion, “Requiring protestors to win prior police permission to hold after-sunset outdoor protests directly violates Clause 2, Article 21 of the Constitution, which bans inspection of press and publications and on permission of rallies.”

Justices Kim Hee-ok and Lee Dong-heup said the clause is constitutional.

○ Enforcement of articles until law revision

Prosecutors said they will not withdraw their indictments for those undergoing trial for violating the articles, noting the Constitutional Court ordered the articles to remain in force until after laws are revised.

Existing laws will also be applied if additional violations occurred before the laws’ revision. The National Police Agency said in an official statement, “We will adequately gather public opinions before seeking to revise relevant provisions at the earliest date,” adding, “As the articles will remain effective, however, we would like to ask the public to follow existing laws until revision.”

The court, however, is not sure what to do about pending cases for which trials are underway. Some judges claim that since the Constitutional Court ordered temporary enforcement of existing laws, violators must be found guilty. Others warn against issuing guilty verdicts since the ruling deems the articles unconstitutional.

A Seoul Central District Court source said, “We are internally discussing how we will apply the Constitutional Court’s ruling to our trials.”

As the court is reviewing whether protestors active at night could interfere with traffic, certain judges said they will delay trials until the court makes a ruling.

The ruling will likely have a limited impact on pending trials, however. Only 35 of 913 people on trial for violating the nighttime rally ban have been indicted for violating the two articles. Most of them face more severe charges, such as interference of general traffic flow and obstruction of public enforcement.

Those violating the nighttime outdoor rally ban face rather light punishment, namely a fine of up to one million won (840 U.S. dollars) or a year in prison. Simple participation in such rallies is subject to a fine of 500,000 won (420 dollars) or short-term detention.

dawn@donga.com