"Fundamental Rights Infringement" vs "Right to Peace"… 15 Years of Legislative Vacuum, Chaotic Late-Night Gatherings [Controversial Assembly Act]

③Deadlock Over Article 10 of the Assembly Act
Opposition Between Ruling and Opposition Parties Halts Legal Revision
Drinking Parties and Overnight Protests Cause Public Discontent
Need for Social Consultation on Assembly Hours

Editor's NoteThe freedom of assembly and association is a fundamental right guaranteed by the Constitution. However, discomfort caused by assemblies has clashed with another fundamental right?the pursuit of happiness?leading to cracks in public consensus. Some assemblies exploit loopholes in lax laws. Asia Economy examines various debates and alternatives surrounding the Assembly and Demonstration Act (ADA) over four installments.

Tensions are escalating between the government and ruling party and civic groups over the complete ban on assemblies and demonstrations during late-night hours (midnight to 6 a.m.). While the ruling party and government are pushing for legal amendments to ban late-night assemblies entirely to ensure citizens' peace, opposition parties and labor groups are opposing the bill, arguing it excessively infringes on the freedom of assembly. With a 15-year legislative gap regarding late-night assemblies after midnight, experts point out the urgent need for bipartisan grand compromise to minimize citizen inconvenience.

The police are completely blocking the nighttime cultural event held last May in front of the Supreme Court in Seocho-gu, Seoul, organized by the Metal Workers' Union and the irregular workers' group "No More Irregular Workers" joint struggle. Photo by Yonhap News

Article 10 of the ADA Rendered Ineffective... Leaves Room for Assemblies After Midnight

According to the National Assembly's legislative information system on the 28th, Rep. Yoon Jae-ok of the People Power Party officially proposed an amendment to the Assembly and Demonstration Act (ADA) on the 21st, focusing on banning assemblies during late-night hours. The proposed amendment specifies the prohibited time for assemblies and demonstrations as from midnight to 6 a.m.

Currently, Article 10 of the ADA prohibits assemblies and demonstrations from sunset to sunrise. However, the Constitutional Court declared this provision unconstitutional and partially unconstitutional, rendering Article 10 ineffective. Since then, no supplementary legislation has been enacted, resulting in a 15-year legislative vacuum.

Previously, in 2009, the Constitutional Court ruled the ADA's Article 10, which defined the prohibited time for outdoor assemblies as "from sunset until sunrise the next day," as unconstitutional. The Court judged that banning all outdoor assemblies after sunset violated the constitutional guarantee of freedom of assembly. In 2014, the Court also ruled partially unconstitutional the prohibition of demonstrations from sunset until midnight on the same day, emphasizing that assemblies and demonstrations should be allowed until midnight to avoid broad infringement on freedom of assembly.

However, the Court left room for discussion regarding assemblies and demonstrations after midnight. It deferred the decision to the National Assembly to legislate based on South Korea's protest situation and public sentiment. Nevertheless, legislative amendments have repeatedly failed due to unresolved disagreements between ruling and opposition parties.

Due to the lack of effective regulations on late-night assemblies, the police have been resorting to other provisions within the ADA for indirect enforcement. A police official explained, "Article 8 of the ADA states that assemblies can be prohibited if they pose a risk to public peace and order. If an assembly occurs past midnight near residential areas or causes severe traffic congestion disrupting order, the police restrict the assembly based on Article 8 and other provisions."

Overnight Assemblies Draw Criticism... Amendment Emphasizes Ban After Midnight

As social conflicts persisted due to the legislative gap lasting over a decade, the ruling party and government launched a major overhaul of the ADA. A decisive trigger for the legislative push was a 1-night, 2-day overnight assembly held by the Construction Union of the Korean Confederation of Trade Unions (KCTU) in May last year. Despite police issuing a ban notice after 5 p.m., the Construction Union continued their overnight assembly on mats around Gwanghwamun Square in Jung-gu, Seoul, causing severe traffic congestion. During this time, some union members were seen drinking and urinating on the street, drawing public criticism. The Seoul Metropolitan Police Agency's 112 situation room received about 80 noise complaints related to the assembly.

On May 17 last year, during the morning rush hour, citizens in Cheonggye Plaza, Jung-gu, Seoul, are passing by the construction union members of the Korean Confederation of Trade Unions who were camping overnight after the general strike resolution rally the previous night. Photo by Yonhap News

The amendment proposed by Rep. Yoon focuses on banning the problematic overnight assemblies. It explicitly designates the time after midnight, which the Constitutional Court left open for discussion, as a prohibited period for assemblies. The police also announced a "Culture Improvement Plan for Assemblies and Demonstrations" in September last year, which includes a complete ban on assemblies and demonstrations after midnight.

A representative from Rep. Yoon Jae-ok's office stated, "The 15-year legislative gap regarding late-night assemblies effectively means the National Assembly neglected its duties. Since the right to assemble is a fundamental right, the public's right to sleep and peace must also be guaranteed. That is why we proposed this amendment."

However, immediate amendment of the ADA seems unlikely. Opposition parties and labor groups oppose the bill, citing the Constitutional Court's rulings of unconstitutionality. At the time of the 2009 Constitutional Court decision, five out of nine justices expressed opinions that the Constitution prohibits a permit system for assemblies. Opposition parties and labor groups argue that allowing assemblies only during certain hours infringes on constitutionally guaranteed fundamental rights based on these opinions.

The courts have also intervened against police bans on late-night assemblies. In November last year, the Seoul Administrative Court accepted a suspension request filed by a civic group against the Jongno Police Station's ban on a late-night overnight assembly, citing potential infringement on freedom of assembly if overnight assemblies were completely banned.

Considering Potential Fundamental Rights Infringement... Experts Call for Policy Balance

Experts advise that social consensus should come first to minimize futile conflicts surrounding sanctions on late-night assemblies after midnight.

Professor Jang Young-soo of Korea University Law School said, "The Constitutional Court likely considered that the 'from sunset to sunrise' period specified in the existing ADA was overly broad, potentially restricting assembly participation by certain groups such as workers. However, the original intent has been distorted, causing side effects like overnight assemblies. Now, the key is how to define the prohibited time range for late-night assemblies in a way everyone can accept."

There are also calls to find a policy balance that allows freedom of assembly without infringing on others' right to peace.

Professor Sung Joong-tak of Kyungpook National University Law School noted, "The Constitutional Court recognized nighttime assemblies as constitutional, assuming they are sound and peaceful. It is difficult to include high noise and disorder during late-night assemblies after midnight within the scope of protected freedom of assembly."

He added, "It is necessary to permit late-night assemblies strictly on the premise that they do not infringe on others' health, peace, and privacy rights. Since fundamental rights conflict, solutions should be sought through compromise and reconciliation from a grand perspective."