Posted September. 25, 2009 07:34,
The Constitutional Court struck down yesterday the ban on nighttime outdoors rallies as unconstitutional, reversing its 1994 decision. In 1994, the court ruled that freedom of assembly is not absolute and can be restricted by law when a ban is indispensably necessary. The court said nighttime outdoor rallies would probably violate public order and that criminal law is stricter on nighttime activities. It is hard to say the domestic culture of holding demonstrations has improved since 15 years ago.
Several of the justices said the restriction violates the constitutional ban on the government from permitting rallies, citing precedents in advanced economies lacking bans on nighttime outdoor rallies. Last years candlelight protests that went on for more than 100 days from May last year, however, showed that nighttime outdoor rallies can seriously harm the public order and the constitutional value of the right to pursue happiness. Studies suggest that the candlelight protests resulted in losses of 3.7 trillion won (3.1 billion U.S. dollars).
Though the Constitutional Court cited legislative examples in advanced economies, it is premature to compare Koreas demonstration culture to that of developed countries. How can a country in which police even arrest lawmakers who cross a police line be comparable to Korea, where police are helpless against protesters who beat law enforcement officers and set police buses on fire?
The court decided that the ban stay valid through June next year. The ruling does not necessarily mean that nighttime outdoor rallies are allowed unconditionally. The purpose of the law on rallies and demonstrations is to strike a balance between the peoples right to legal assembly and public order and welfare.
A revised law on rallies should provide sufficient measures to minimize the side effects of allowing nighttime outdoor rallies. Strict limits on nighttime demonstrations are needed just like for daytime rallies. As the law will remain valid until the end of June next year, domestic courts should quickly resume trials of those indicted for violations committed in the candlelight protests last year.
Freedom of assembly and the right to hold rallies are not unlimited. The spirit of the Constitution is to allow freedom of assembly as long as a rally does not undermine social order and violate other peoples happiness.