| The Constitutional Court has ruled that a current law banning nighttime demonstrations is "limitedly unconstitutional," saying that interpreting the law as a ban on all night rallies taking place before midnight. The decision makes us wonder whether the justices have ever visited the Gwanghwamun area in downtown Seoul where nighttime demonstrations are frequently staged. In addition, the top court set a new standard of 24:00 a.m. instead of sunset, infringing upon the National Assembly`s legislative discretion.
It is possible that the current ban on nighttime protests violate basic civil rights because it lacks any clause allowing for exceptions. A law banning nighttime outdoor rallies that was declared unconstitutional in 2009 had such a clause. But the ban on nighttime demonstrations did not have any. However, people have been able to express their opinions in groups in nighttime outdoor rallies since 2010. If they need to demonstrate, they can do it during daytime. Police in advanced European countries, including Britain, France and Germany, that faced threats of government subversion allow neither demonstrations after sunset nor outdoor rallies.
In Korea, most protests by labor organizations or leftist groups are disorderly held. Demonstrations that begin at daytime often continue well into night even if nighttime protests are banned. Few such demonstrations ended peacefully. Participants in nighttime protests tend to get easily excited. At dimly light places, anonymous violence can happen. Had the Constitutional Court justices ever visited the protest-prone Gwanghwamun area to see the sufferings citizens have to go through, they would not have made such a decision.
It is up to the National Assembly to set a new standard at 10:00 p.m. or at midnight. Three justices presented a prudent opinion that the law should be declared simply "unconstitutional," leaving it up to the legislature to set a concrete standard for the nighttime ban.
The ruling that allows protests until midnight takes immediate effect without the National Assembly`s legislation of a new act to replace the old one. The Supreme Court does not follow the Constitutional Court`s "limited unconstitutionality" decisions on grounds that such rulings have no legal basis. The latest decision, in which the Constitutional Court virtually performed a legislative act, would cause confusion among citizens.