Ban on gatherings near the 'President's Residence' violates the Constitution... Constitutional Court rules 'Unconstitutional'

Constitutional Court: "Total Ban on All Gatherings Difficult to Justify... Restriction on Freedom of Assembly"
Near Presidential Residence Deemed Most Effective Place for 'Expression of Opinion'

Chief Justice Yoo Nam-seok of the Constitutional Court (center) and other justices entered the Grand Bench of the Constitutional Court in Jongno-gu, Seoul, on the afternoon of the 22nd and took their seats.
[Image source=Yonhap News]

[Asia Economy Reporter Heo Kyung-jun] The Constitutional Court has ruled that the legal provision prohibiting outdoor assemblies or demonstrations within 100 meters of the presidential residence is unconstitutional.

Accordingly, the police can no longer uniformly ban assemblies near the presidential residence. However, the Constitutional Court did not issue a simple unconstitutionality ruling on the current provision, expressing concern that a legal vacuum could arise in protecting the constitutional functions of the president. Therefore, it decided that the current provision will remain in effect until the National Assembly enacts revised legislation by May 31, 2024.

On the 22nd, the Constitutional Court issued a unanimous decision of constitutional inconsistency regarding Article 11, Paragraph 2 of the former Assembly and Demonstration Act and related provisions concerning the "presidential residence."

The petitioner, Mr. A, was prosecuted for hosting an outdoor assembly in front of a fountain approximately 68 meters from the boundary of Cheongwadae, the presidential residence, in August 2017. During the first trial, Mr. A requested a constitutional review of the law.

The first-instance court handling the case stated, "The provision under review prohibits assemblies or demonstrations without any exceptions even in small-scale or peaceful gatherings where no concrete risk situation exists or is likely to occur. It imposes an absolute ban within 100 meters without any reasonable grounds or criteria, violating the constitutional principle of proportionality and infringing on the freedom of assembly," and thus decided to request a constitutional review.

The Constitutional Court found that the provision under review broadly designates the area near the presidential residence as a prohibited assembly zone, including places where assemblies do not need to be banned. Furthermore, the Court judged that when citizens wish to express opinions to the president through assemblies, the area near the presidential residence is the most effective place for such expression.

The Court stated, "In the case of small-scale assemblies where there is no risk of escalation into large-scale demonstrations, the likelihood of direct threats is relatively low," and "The provision under review prohibits assemblies without exception, even when no concrete risk to legal interests exists."

It added, "The Assembly and Demonstration Act provides various regulatory measures, such as banning the organizers of assemblies that clearly pose a direct threat to public peace and order, to deal with violent and illegal assemblies," and "Even if some assemblies near the presidential residence are exceptionally permitted, the constitutional functions of the president can be sufficiently protected."

Moreover, the Court judged, "It is difficult to justify banning all assemblies near the presidential residence solely on the assumption that there is a vague risk of violence, illegality, or sudden incidents," and "A blanket and uniform ban on assemblies near the presidential residence restricts the core part of the freedom of assembly."

The Constitutional Court did not definitively clarify whether the term "presidential residence" should be understood broadly to include the presidential office and living quarters such as the president’s residence, or narrowly limited to living quarters. Regarding this, Justices Lee Seon-ae and Lee Jong-seok pointed out the need to clarify the concept of the residence as a premise for discussion and expressed a separate opinion that the broad concept of the residence is appropriate.

Meanwhile, a revision bill banning assemblies near the presidential office and former presidents’ residences, agreed upon by the ruling and opposition parties, has passed the National Assembly’s Public Administration and Security Committee.

This content was produced with the assistance of AI translation services.