The Announcement of 100 Legal Scholars
Regarding the Grand National Party's Attempt to Pass the Prohibition of Outdoor Assemblies at Night

We oppose the attempt to prohibit nighttime outdoor assemblies based upon the Constitution.

In September last year, the Constitutional Court ruled Article 10 of [the Assembly and Demonstration Law (referred below as ADL)], prohibiting nighttime outdoor assemblies, unconstitutional.  There have been nighttime assemblies beginning last July due to the National Assembly's inaction to initiate amendments to the ruling.

However, the ruling party, the Grand National Party(GNP), is attempting to pass amendments of the ADL at the regular session.  According to the press, the administration and the Grand National Party held a special consultative meeting with high ranking officials of GNP, the administration, and the blue house. on October 10 and decided to take care of the ADL by prohibiting nighttime outdoor assemblies.  Further, the meeting also affirmed their decision to pass the amendments even if they had to call upon the authority of the speaker to push the process.

In fact, the Grand National Party continued to try, since early this year, to revive Article 10 of the ADL, prohibition of nighttime assemblies, which had been annulled by the Constitutional Court.  The party official, Congressman Jin Hyung Cho, asserted amending the initial phrasing, "before the sunrise or after the sunset," to "10 PM to 6 AM."  The party also suggested negotiating with the opposition party to set the time to either 10 PM or 11 PM.  The supporting arguments for this amendment were the possibility of frequent violent assemblies because people may become violent when participating at night, increasing chaos from destroying social order, and violation of right to leisure due to noise at night and disturbing sleep.

However, such incidents did not occur although there were nighttime assemblies since July.  The police statistics does not list even one incident of an illegal violent assembly and social chaos did not occur from this.  Besides, the assemblies usually ended around 10 PM and were held in a downtown area, never directly disturbing people's right to leisure.  In sum, it is clear from the last three months' experience, the ruling party's argument were unfounded and exaggerated.

Notwithstanding these findings, the Grand National Party still supports the prohibition of nighttime assembly based upon a new reason, safely hosting the G20 Summit.  The party is arguing that they must prevent a violent assembly in Seoul held by domestic opposing power and international professional demonstrators. In even that this happens, police force must be rerouted and public safety may be at risk.  The party argues that this is precisely why it is better to limit the nighttime assembly all together.

However, this argument is without any logical basis.  The special law for G20 security and safety was passed last June at the National Assembly.  According to Article 8 of this law, "the head of control may request the chief of police of the jurisdiction to limit assembly and demonstration activities, and the police chief having received this request must act to limit assembly and demonstration activities regardless of the ADL.  From this provision, the police enforced complete prohibition of assembly within 2 km radius of event hall, COEX, from November 8 to 12.  The amendment excessively limits people's rights rather than addressing concerns with respect to the security of the G20 Summit as argued by the administration and the Grand National Party.

It is equally unpersuasive when one examines the ruling party's argument that the nighttime assembly will result in risking public safety.  The police stated that it will call in 50,000 police officers from other regions to Seoul for security of the G20 Summit.  The only danger to public safety would be the administration's policy and concentration of police force for the Summit, not nighttime assemblies.  The argument also lacks support when the party claims that nighttime assemblies must be prohibited in order to safely host the G20 summit.

Furthermore, the revision of Article 10 of the assembly and demonstration law (referred below as ADL) in an attempt to prohibit outdoor assemblies based is contrary to the Constitution upon the following :
 
First, the prohibition of outdoor assemblies violate a spirit of the Constitution, protection of people's human rights. The Constitutional court's last year decision by which Article 10 of the ADL was found unconstitutional was due to its violation of the spirit of the Constitution itself.  The issue at hand was not simply one cannot have a demonstration "after sunset and before sunrise."  Since the issue is not about the duration of time and even if the law is modified to prohibit assemblies after a later time, the fundamental problem of unconstitutionality in prohibiting every and all assemblies/demonstrations during a certain time period still remains.

Secondly, it violates freedom of assembly.  The Constitution guarantees participants' freedom to decide when, where, and how an assembly is held as long as it is peaceful.  However, the prohibition of outdoor nighttime assemblies bans the act itself regardless of duration and time of assembly.  Therefore, the prohibition fundamentally violates freedom of assembly.

Thirdly, it is also a breach of minimum limitation of rights whereby the government should guarantee maximum human rights of its people with minimum limitation.  It is a common sense without requiring further explanation that the basic rights stipulated in the Constitution should be guaranteed as much as possible.  Nonetheless, prohibiting nighttime assemblies even when there is no societal problem illustrates ignorance of this common sense.  Further, the prohibition is clearly unconstitutional and violates people's rights.

So far the most convincing reason for prohibiting outdoor assemblies was illegal violent assemblies.  However, statistics of the past three months of nighttime assemblies indicate that this worry was groundless.  Rather it showed that demonstration culture in South Korea is much more peaceful than in other countries.  Despite this fact, what is the reason for the administration and the Grand National Party to revise the ADL and prohibit outdoor demonstrations again?  Is it for people's right to leisure when no one's sleep has been disturbed, or to rectify social order when there has not been a chaos?

Seattle, Washington D.C. Prague, and Geneva.  These cities share a similarity of having hosted an international meeting and simultaneously held anti-globalization assemblies and demonstrations. In other words, these countries did not completely prohibit these activities although they were actively being held.  It is not because they did not know how to prohibit these activities, bur rather they valued freedom of assembly as part of human rights just as freedom of expression was.  However, the administration and the GNP is attempting to prohibit outdoor assemblies by revising the ADL, to ensure security and safety of the G-20 Summit being held for one night and two days.  How can one interpret this?  It can only be interpreted that the G-20 Summit is being used as an excuse to again seal people's mouths by limiting freedom of assembly.

Therefore, we, one hundred legal scholars, demand the following when freedom of assembly is in danger:
 
One.  The administration and the Grand National Party must immediately cease their attempt to prohibit outdoor assemblies.
One.  Immediately cease excessively limiting people's rights by using the G-20 Summit as an excuse.
One.  Delete all excessive limitations stipulated in the current ADL and comprehensively revise the ADL based on the Constitution.
 

October 22, 2010