Commissioner Yoon Must Rescind His Unconstitutional Restrictions on Assembly!
Extrajudicial Is Banning Rallies Solely Based on Protest Experience
Appalling Is Arbitrarily Labeling Cultural Festivals as Rallies and Dismantling Them
Police Commissioner Yoon Hee-geun’s unconstitutional remarks went too far. During a press briefing on May 18th, Yoon announced a new policy to prohibit organizations with a record of illegal gatherings from holding similar rallies, in response to the construction union’s rally on May 16th and 17th. Does Yoon intend to deny the freedom of assembly, which is one of the fundamental pillars of democracy? The Public Interest Law Center of the People’s Solidarity for Participatory Democracy demands the immediate withdrawal of this extrajudicial and unconstitutional policy.
Article 21, Section 1 of our Constitution declares that all citizens shall enjoy freedom of speech and the press, and freedom of assembly and association. Section 2 states that licensing of assembly and association shall not be recognized. In addition, our courts have established a jurisprudential principle that limitations on the exercise of fundamental constitutional rights should be imposed only when there is a “clear and present danger.” As early as May 30, 1995, the court ruled in favor of a lawsuit filed by the Movement Headquarters for the Eradication of Crimes Against the United States Military in Korea, which was represented by Jeon Woo-seop. The lawsuit aimed to overturn the ban on outdoor gatherings, imposed by the Seoul Metropolitan Police Commissioner. The court ruled that it was illegal to reject a rally application solely based on the potential for violent demonstrations and traffic disruptions. This ruling was made by the Seoul High Court in case 95-gu 6146. It is an established precedent of the Supreme Court that a peaceful assembly cannot be dispersed, even if there are illegalities such as failure to report, violations of reporting requirements, or violation of a prohibition notice. Banning rallies based solely on illegal protest experience implies that the notification system, which is used to acquire administrative support for a rally, becomes a permit system that can be denied based on the content of the notification or the identity of the complainant. Accordingly, Commissioner Yoon’s proposed approach to assemblies directly contradicts the Constitution and previous legal precedents.
The policy of dispersing gatherings under the guise of cultural festivals on the spot is also unconstitutional and extrajudicial. Cultural festivals do not have to be registered under the laws on assembly and protest. Even if the police arbitrarily define a cultural festival as an unlawful assembly, there is no legal basis for dispersing a peaceful assembly. Depending on the purpose and objectives of the event, a cultural festival may include a variety of elements, such as music, dance, art exhibitions, and traditional performances. However, it is important to note that certain activities, such as chanting and picketing, have been misused by law enforcement to unjustly categorize press conferences as assemblies. It is the right of the organizers to decide how to plan and conduct the event. The notion that the police can employ subjective criteria to categorize an event as a rally may lead to the curtailment of diverse cultural activities and reflects a regressive approach by the Lee Myung-bak administration.
In the current political situation, where democracy is receding in many areas, the way in which law enforcement responds to public gatherings is particularly concerning. The Commissioner of Police does not have the authority to regulate assemblies, but instead has the responsibility to ensure that citizens have the right to assemble safely. The Metropolitan Police Service should immediately cease its use of extrajudicial and unconstitutional tactics.
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