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South Korea should have upheld nighttime assembly ban as a reasonable means to avoid violent protest

Sean Hayes [International Corporate Practice Group, Joowon Law Firm]: "As most of us in Korea realize, many "peaceful" protests have too often turned violent at night.

In the not so distant past, protests over the importation of US beef led to, amongst other things, numerous injuries to police officers, burned buses, Seoul-wide traffic congestion and lost revenues for businesses. Many of the protesters that remained at night were simply young intoxicated malcontents with a propensity to violence. These malcontents were strongly influenced to act by a radical liberal element that is keen to not work within the political system, preferring instead destroy it.

Only last month, protests at Ssangyong Motors, which lasted 76 days, ended in Molotov coctails and bolts from slingshots being flung at the police. The plant was finally returned to its owners by a commando unit.

The Korean Constitution declares in Article 21 (1) that: "All citizens shall enjoy freedom of speech and the press, and freedom of assembly and association." Article 21 (2) follows by noting that: "Licensing or censorship of speech and the press and licensing of assembly and association shall not be recognized."

The language of the Korean Constitution seems to absolutely guarantee that "licensing of assembly and association" is banned. However, as with the First Amendment to the US Constitution, absolute language doesn't necessarily guarantee that courts will not impose limits on rights and freedoms.

Reasonable, time, place, and manner restrictions on assembly must be upheld. In this charged and often violent Korean protest culture, measures must be taken in order to avoid deaths, destruction of property, and worldwide embarrassment.

The Assembly and Demonstration Law is nothing more than a content-neutral reasonable, time, place and manner type of regulation of assembly that should have been upheld. The "General Traffic Obstruction Law" has also been challenged at the Court. If that law is not upheld, expect an increase in protests in the near future and good luck getting home on a Friday night."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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