Call for as Much Freedom of Assembly and Demonstration as Possible
The National Human Rights Commission of Korea (NHRCK) finds the provisions of the Assembly and Demonstration Act regarding rally prohibition likely to violate the freedom of assembly and demonstration, which are guaranteed by the Constitution of the Republic of Korea. The NHRCK has decided to recommend that the Speaker of the National Assembly and the Minister of Justice abolish or revise the applicable clauses and that the Commissioner General of the Korean National Police Agency improve the existing practices concerned to eliminate any possibility of human rights infringements even before the foregoing clauses are amended. The specific recommendations issued by the Commission are as follows:
First, Article 8, Paragraph 2 says that when two more assemblies or demonstrations compete for the same place and the same time, the one that reported later may be prohibited. This regulation has been abused to prevent a rally reported after another one. Despite the spatial and time overlaps, the authority must be able to prevent the concerned traffic disturbance by taking other measures besides prohibition, e.g., imposing certain restrictions. Thus, this clause should be abolished.
Second, Article 12 stipulates that an assembly or demonstration may be prohibited for the sake of smooth traffic flow. In consideration of the significance of the freedom of assembly and demonstration, prohibiting an assembly in the first place out of concern for traffic inconvenience is extreme. Disturbances to public order can be controled by other means, for instance, imposing restrictions. Clearly, this clause should be invalidated.
Third, Article 5, Paragraph 1, Item 2 and Article 8, Paragraph 5 together state that an assembly or demonstration that is expected to threaten public order should be prohibited. When the police notify the rally planners concerned of its prohibition based on this clause, they usually use the rally group's past record of illegal demonstrations as a pretext. This should be rectified. That is, this clause should be revised to encourage the police to fairly judge a reported rally's risk to public order not based on the past but based on the current circumstances when the rally report is made.
Fourth, Article 9 and Article 12 set forth that in case the host of an assembly or demonstration is notified of the prohibition of the rally, he or she may raise an objection within ten days to the head of the police agency immediately above the police agency that issued such prohibition. Considering the relationship between the two police agencies, this clause naturally gives rise to suspicion over fairness. This rule should be revised in a manner to eliminate such controversy.
The NHRCK also deems that the existing law enforcement practices need to be rectified even before the law is amended in order to eliminate any possibilities of human rights violations when the police prohibit rallies and prevent provincial demonstrators from coming to Seoul.
The freedom of assembly is a fundamental means of self-expression and exercise of democracy, as well as one of the essential freedoms guaranteed by the Constitution of the country. It also constitutes a constitutional right that is helping Korea become a pluralistic society where the full range of opinions are tolerated. Therefore, police power should be exercised according to the principle of proportionality and the principle of least restriction, and when exercised regarding rallies and demonstrations, it should not violate the essence of the freedom of assembly.
The NHRCK has since its inception received numerous complaints involving rallies and demonstrations and made concerted efforts to help ensure that proper measures are taken for specific cases. In the process, the Commission has heard often that the police are arbitrary in their decisions as to whether to prohibit rallies. In effect, the police frequently interpret the policy as if it were permit-based rather than report-based.
