Public gatherings protected
A plaza is the core of democracy. Seoul Plaza in 1986, Pariser Platz of Germany in 2002 and Taksim Square of Turkey in 2013 are the places where people gathered to express their opinions. Through the plazas, democracy was demanded and upheld.
An assembly means that multiple people gather in one place. It requires a space where people can observe a gathering and participate when they want. The freedom of assembly protected by the Constitution means that the space for those gatherings is also guaranteed.
Building fences to separate a rally from the passersby is, therefore, an illegal action. Of course fences can be built to prevent violence, but the destruction of buses in the last Sewol rally would not have occurred if the buses were not used to create the fences to begin with.
The Seoul Metropolitan Government is infringing upon the freedom of assembly by operating a permit system for the venue. The city probably thinks that it has the right to receive applications and issue authorizations since it is the manager of the plaza. And yet, article 21 of the Constitution states that “licensing or censorship of speech and the press, and licensing of assembly and association shall not be recognized.” Operating a permit system for the plaza is, therefore, unconstitutional.
All land in Korea is state-owned, privately owned or public space. The usage of private or state-owned land requires the owner’s permission, making assembly often impossible. So where did the constitutional founders think assemblies could take place?
They thought of plazas and roads as public spaces that could be utilized.
In fact, the U.S. Supreme Court ruled in 1939 that the ordinances that license assemblies on roads and in parks, plazas and public buildings are unconstitutional. The court said although a city controls and manages the place, it cannot be operated like a stadium or a theater, because the roads and parks were historically used as a venue to exchange opinions and discuss public issues.
The ordinances that govern Gwanghwamun Plaza and Seoul Plaza are actually in violation of the higher laws concerning roads as well as assembly. Gwanghwamun Plaza is the pedestrian road inside the Sejongno for the cars. The city may have designated it as its property in terms of urban planning, but the space is actually a road, and that is why the city government needs to obtain permission from the police to hold an event there. Seoul Plaza was also a traffic circle and it still is legally a road.
A road cannot be controlled freely by a local government. It belongs to the people. Stopping up one side will disturb the people on the both ends of the road. That is why a local government, under the law governing roads, must allow all the people to use it freely instead of controlling it as if it were a sports facility or outdoor theater.
Since the plaza is a road, anyone can hold a rally. According to a precedent by the Supreme Court, they are also entitled to hold the gathering without being forced off the premises. Obtaining permission from the Seoul Metropolitan Government to hold a rally at the plaza, in addition to informing the police, is against the law. We must spare the public this ordeal.
Translation by the Korea JoongAng Daily staff.
The author is professor of law at Korea University.
by Park Kyung-shin