Prohibition of assembly near presidential residence is inconsistent with Constitution

The Constitutional Court has ruled that the current Assembly and Demonstration Act, which prohibits assemblies and demonstrations within 100 meters of the presidential residence, is unconstitutional.

With the unanimous opinion of the judges, the Constitutional Court ruled on Thursday that Article 11 of the Assembly and Demonstration Law (Assembly and Demonstration Act), which prohibited outdoor assembly and demonstration within 100 meters of the presidential residence, was unconstitutional. Given the legal vacuum, the related provisions are scheduled to be revised by May 31, 2024. This provision, which has been in place since the Assembly and Demonstration Act was enacted in 1962, will change for the first time in 62 years if amended in 2024.

The Constitutional Court found that a blanket ban on assemblies on the grounds that they were close to the presidential residence was an excessive infringement on the freedom of assembly. “If the people want to express their opinions to the president through an assembly, the vicinity of the presidential residence is the place where opinions can be conveyed most effectively,” the Constitutional Court said. “The judges at the Court pointed out that it is difficult to justify banning all assemblies held near the presidential residence, based on the assumption of a vague risk of violence or illegality or the possibility of an uncertain situation.”

This decision, however, is not intended to allow assemblies near the presidential residence. “It is desirable to leave it to the legislator’s judgment as to which assembly is to be allowed as an exception,” the Constitutional Court said.

The claimant in this case, Mr. A, was charged with holding a rally in front of a fountain about 68 meters away from the Blue House in August 2017. During the trial, Mr. A filed a request for a constitutional adjudication on Article 11 of the Assembly and Demonstration Act. The court accepted it and requested a constitutional adjudication to the Constitutional Court.

This decision is expected to cause controversy over the amendment to the Assembly and Demonstration Act, which passed the National Assembly's Public Administration and Security Committee on Dec. 1. The amendment is about a ban on assemblies and demonstrations within a radius of 100 meters from the office of the president and former president’s residence. Since this decision is related to the residence of the incumbent president, the legal circle considers it difficult to apply it directly to the office of the incumbent president or former president's residence.


Oh-Hyuk Kwon hyuk@donga.com