SOUTH KOREA – Unconstitutional: amendment of public assembly act
3 March 2010 8:30 am
Proposed by the Public Administration
and Security Committee, public assembly in South Korea may be prohibited
from 10 p.m. to 6 a.m. FORUM-ASIA called on the committee not to amend
the law to enable such prohibition in a letter on 18 February 2010.
Proposed by the Public Administration
and Security Committee, public assembly in South Korea may be prohibited
from 10 p.m. to 6 a.m. FORUM-ASIA called on the committee not to amend
the law to enable such prohibition in a letter on 18 February 2010.
We are writing
to you today to express our deep concern regarding the proposed
amendments
to Article 10 of the Act on Assembly and Demonstration, which we
understand
is pending before your Committee right now. These amendments are
the ones that you have proposed and aim to prohibit public assembly
and demonstration between 10pm to 6am. Under the current law, public
assemblies and demonstrations are prohibited to be held after sunset
and before sunrise.
We understand
that on 24 September 2009, the South Korean Constitutional Court has
ruled that Article 10 of the Act on Assembly and Demonstration is
unconstitutional
as it violates the right to freedom of assembly which is enshrined in
Article 21(2) of the Constitution. We also understand that the
Constitutional
Court gave the National Assembly until 30 June 2010 to amend this
article.
Unfortunately, we do not see the amendments that are being proposed
now as being consistent with the guarantees of the right to freedom
of assembly in the Constitution. We also believe that the proposed
amendments
manifest a clear misunderstanding of the decision made by the
Constitutional
Court. In fact, we view the proposed amendments as embodying the same
blanket restriction found in the original provision. We note that the
Constitutional Court requested the National Assembly to amend the law
so that it would fully protect the right to freedom of assembly.
Under international
law, the right to freedom of assembly is a fundamental right that should
not be subject to any restrictions. Should there be any restrictions
on this right, these restrictions must pass the test of proportionality,
which means any restriction imposed should clearly relate to specific
concerns and should be narrowly tailored to meet specific aims pursued
by authorities. The State must show that such a restriction is for a
substantial interest and it must also be shown that without such a
restriction,
this substantial interest would not be served. It must also be
emphasized
that the principle of proportionality requires that there be a full
evaluation of the individual circumstances affecting the holding of
an assembly.
We believe,
therefore, blanket restrictions like the amendment that is currently
being proposed fails the proportionality tests because it is manifestly
over-inclusive. Moreover, such a blanket restriction does not take into
consideration the specific and particular circumstances affecting the
holding of each and every assembly.
We cannot emphasize
enough that the degree of protecting such a fundamental right as the
right to freedom of assembly which is enshrined in Article 21 of the
International Covenant on Civil and Political Rights (ICCPR) is one
of the best indicators of the functioning of a democratic society. It
is the obligation of the Republic of Korea as a State Party to the ICCPR
to ensure the right to peaceful assembly through positive measures.
We would like
to remind that the Republic of Korea has been considered as an exemplary
country in Asia in terms of promoting and protecting human rights. We
also note that Korea is a current member of the UN Human Rights
Council.
It is in this light that we strongly urge you and your Committee to
amend the law in a way that fully guarantees the right to freedom of
assembly in the Republic of Korea and reconsider the adoption of
currently
proposed amendment.