[Fact Check] National Police Chief Says the Barricade Itself Is Not Unconstitutional...

Commissioner Kim Chang-ryong of the National Police Agency Responds at the National Assembly Public Administration and Security Committee's Audit... Why Attention Focuses on the June 2011 Constitutional Court Decision

[Asia Economy Reporter Ryu Jeong-min] “The barricade itself is not unconstitutional.” This was the statement made by Police Commissioner Kim Chang-ryong during the National Assembly Public Administration and Security Committee’s audit on the 8th. The controversy over the ‘unconstitutionality’ of police barricades has been a hot issue throughout October.

Following National Foundation Day (October 3) and ahead of Hangul Day (October 9), the controversy surrounding gatherings in downtown Seoul and the installation of police barricades heated up. Opinions advocating for the constitutional right to freedom of assembly clashed sharply with counterarguments emphasizing the importance of infectious disease prevention in the era of the novel coronavirus disease (COVID-19).

Especially after it became known that many COVID-19 infections occurred during the August 15 Liberation Day rallies, public anxiety grew even more. However, there are also significant criticisms that completely blocking assemblies is a separate issue that needs to be addressed.

[Image source=Yonhap News]

This is the background behind the focus on the unconstitutionality controversy surrounding police barricades. Even outside of the COVID-19 situation, it is common to see large police buses forming massive barricades as defensive barriers at large-scale crowd gatherings.

If the police blocking citizens’ passage with barricades is unconstitutional, then police actions at the National Foundation Day or Hangul Day rallies, as well as other events (assemblies), would also be problematic. So why did Police Commissioner Kim Chang-ryong state that the barricade itself is not unconstitutional?

The judgment on constitutionality is the role of the Constitutional Court. The spotlight in the police barricade controversy is on the Constitutional Court’s decision on June 30, 2011 (2009HunMa406). This case involved nine secretaries from the People’s Solidarity for Participatory Democracy, including Mr. Min, who filed a constitutional complaint claiming that the police surrounding Seoul Plaza with riot police buses to block citizen passage after the death of former President Roh Moo-hyun was unconstitutional.

After former President Roh passed away on May 23, 2009, memorial fervor continued throughout Seoul, including Seoul Plaza. The National Police Agency erected police bus barricades to prevent people visiting the memorial altar in front of Daehanmun at Deoksugung Palace from staging illegal protests in Seoul Plaza across the street, thereby restricting passage.

The complainants, including Mr. Min, argued that the police’s act of surrounding Seoul Plaza with police buses on June 3, 2009, to block passage infringed on their freedom of residence and movement, the right to use public property, and general freedom of action. They filed a constitutional complaint on July 21, 2009, seeking a ruling of unconstitutionality. The key issue was whether restricting passage through Seoul Plaza by surrounding it with police buses violated fundamental rights.

First, the Constitutional Court ruled that “freedom of residence and movement protects the right to choose and change a place closely related to one’s life, such as a residence or place of stay,” and “passing through or entering Seoul Plaza cannot be considered an act of forming a life centered on that place, so it cannot be said that freedom of residence and movement was restricted.”

However, the Court took a different stance on the issue of infringement of freedom of action. A notable part of the Court’s decision was its judgment on the act of completely blocking passage through Seoul Plaza for not only protesters but also ordinary citizens.

The Court explained, “This act of blocking passage is a comprehensive, extensive, and extreme measure that prohibits all assemblies that could take place in Seoul Plaza and even blocks passage of ordinary citizens. Such a measure should only be taken as a last resort in cases where there is an imminent, clear, and serious risk that cannot be prevented by conditional permission of assemblies or by prohibiting or dispersing individual assemblies.”

The Court stated, “Even if many people gathered around Seoul Plaza to mourn former President Roh Moo-hyun or some citizens committed illegal violent acts near Seoul Plaza, that alone does not justify maintaining such measures for four days as an imminent and clear risk of illegal or violent assemblies or protests.”

[Image source=Yonhap News]

The Court ruled as follows regarding this case:

“It is difficult to view the act of blocking passage as the minimally necessary measure given the circumstances at the time. Even if there was a need for comprehensive and extensive assembly prevention measures, completely controlling access to Seoul Plaza restricts ordinary citizens’ passage and use for leisure and cultural activities. Therefore, measures such as opening some passageways under control or lifting some restrictions during times with low risk of large-scale illegal or violent assemblies, or during morning hours when many people commute to nearby buildings, should have been considered to achieve the purpose substantially without excessively restricting citizens’ passage or leisure and cultural activities. Blocking passage for all citizens entirely does not satisfy the principle of minimal infringement.”

The Court added, “While the public interest of protecting citizens’ lives, bodies, and property by preventing large-scale illegal or violent assemblies or protests is important, considering the circumstances at the time, the existence or realization of such public interest was somewhat hypothetical and abstract. This act of blocking passage violated the principle of proportionality and infringed on the complainants’ general freedom of action.”

The Court ruled the act unconstitutional by a 7 to 2 decision, with seven justices voting unconstitutional and two voting constitutional.

On the 9th, Hangul Day, police barricades were erected on the Gwanghwamun road in Seoul to block sudden gatherings and protests. Photo by Hyunmin Kim kimhyun81@

It is difficult to generalize that the Constitutional Court judged the act of police erecting barricades itself as unconstitutional at that time. The Court ruled unconstitutional the act of surrounding Seoul Plaza with police buses on June 3, 2009, to block passage by Mr. Min and others.

The Court’s decision means it was made after comprehensively considering the circumstances and police response at the time.

Then how should we view Police Commissioner Kim Chang-ryong’s claim that the barricade itself is not unconstitutional? While it seems correct in principle, experts say it is not a simple issue.

Professor Han Sang-hee, a constitutional law scholar at Konkuk University Law School, said about police barricades, “The problem is that there are conditions. It was said to be used only as a last resort when there is an imminent and serious risk. The issue is whether that condition was met.”

Regarding the claim that the barricade itself is not unconstitutional, Professor Han said, “In principle, that is correct, but it is not something the Police Commissioner should answer.” Why did Professor Han say this? He explained by citing examples of police firearm use.

Professor Han explained, “(For example) police use of firearms is not unconstitutional, but (if the Police Commissioner says so) he should specify under what circumstances and procedures it is not unconstitutional to use them.”

In the past, the Constitutional Court ruled that barricades violated the principle of proportionality and infringed on general freedom of action, thus deciding unconstitutionality. Rather than the barricade itself, the infringement of public interest and the circumstances at the time were important factors in the ruling. Police Commissioner Kim Chang-ryong’s statement that ‘the barricade itself is not unconstitutional’ may be correct in principle, but constitutionality can be judged by examining under what conditions it applies. Therefore, it is a judgment based on half the facts.