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Mar 28, 2009

Testing the Con. Court Tests

By Sean Hayes (Korea Times 3/26/09)

In my column, last week, I discussed a case at the Constitutional Court of Korea considering the ban on night protests. The article detailed the test used for time, place, and manner regulation of speech and assembly in the United States.

As I mentioned in the column, in the United States, a law concerning assembly will be upheld if it is a reasonable time, place and manner regulation.A reasonable time, place, and manner regulation is content-neutral, has an important government interest, is narrowly tailored to achieve the interest, and provides viable alternative channels for communication.

The test was developed in the United States and has been adopted, in part, by many non-American courts.The regulation, in Korea, would likely meet the American test.

However, in Korea, the law may be analyzed in a different manner because of notable differences in the text of the Korean Constitution.All too often, Korean scholars fail to give credence to the text of the Constitution and blindly hammer American, German, Japanese, and French legal tests into a uniquely Korean document with a uniquely Korean history behind the text.

This not only leads to a lack of understanding of the historically developed freedoms and rights evident through interpretation of the text of the Korean Constitution, but also creates a situation that leads to the destruction of the institutional integrity of courts. Courts receive power to interpret and declare laws unconstitutional through the Constitution.

If we allow courts to adopt foreign constitutional law, with no foundation within the text of the Korean Constitution, we are then simply allowing courts to have powers not granted through the Constitution, and thus usurp powers from other branches or the people. To begin our analyses we should look to the text of the Korean Constitution.

The Constitution guarantees the freedom of assembly by noting in Article 21 (1) that: ``All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.'' The clause creates the freedom of speech, press, assembly and association in terms that resemble the U.S. Constitution.

The Korean Constitution provides additional protection of these freedoms by noting in Article 21 (2) that:  ``Licensing or censorship of speech and the press, and licensing of assembly and association shall not be recognized.'' The Korean word that was translated into the English word ``licensing'' refers to the act of allowing one to do an act only after the act is authorized by a controlling authority.If literally interpreted, the clause may be considered unique when considering the freedom of assembly in other nations.

Does the clause mean that the government can't require the application for a permit prior to an assembly? If so, Korea would be the only country that I know of, that doesn't have a permit system for at least some assemblies.Thus, I think it is reasonable to conclude that the term assembly, must not mean simply assembly, but must mean a particular type of assembly. The word in Korean that is used for the English word ``assembly'' refers more exactly to a gathering or meeting.

The word, in of itself, may refer to a ``peaceful gathering,'' since the word naturally is used only for gatherings that are peaceful. Thus, a possible interpretation of the Article 21 (2) is that all peaceful gatherings are absolutely protected and thus no prior authorization can be required for peaceful gatherings.

Article 21 (4) also limits the scope of protected assemblies. The article notes that: ``Neither speech nor the press shall violate the honor or rights of other persons nor undermine public morals or social ethics.'' An assembly, naturally has elements of speech as part of the assembly, therefore a logical reading would be that assemblies can not ``violate the honor or rights of other persons nor undermine public morals or social ethics.''

Therefore, a reasonable reading is that all ``peaceful gathering'' that don't ``violate the honor or rights of other persons nor undermine public morals or social ethics'' are absolutely protected.The key problem that the Constitution still doesn't seem to answer is whether the government has the power, prior to the action of holding an assembly to require a permit and whether certain blanket prohibitions of assemblies at certain times and places is permitted under the Constitution.

It seems in all likelihood from the history of the Korean Constitution and Constitutional Court case law that ``prior restraint'' of speech and assembly that may damage the rights and freedoms may be allowed when appropriate alternative channels are available.

It will be interesting to see if the Constitutional Court will apply to this case the American ``clear and present danger test,'' other tests, or choose to rely, as is often the case, on the overly used and under-analyzed Article 37 (2) catchall balance to either declare the law banning night protests constitutional or unconstitutional.

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SeanHayes@ipglegal.com

New York attorney Sean Hayes leads the International Practice Group (IPG) at J & S Law Firm. Sean Hayes formerly worked for the Constitutional Court of Korea and as a professor of constitutional and contract law. Sean Hayes may be contacted at: SeanHayes@IPGLegal.com or http://www.thekoreanlawblog.com/.