Who is violating the Constitution?

South Korean daily Hankyoreh, in a front-page top article titled "Who is violating the Constitution?" on Wednesday, criticized the police for not allowing an anti-government protest scheduled for Saturday by the Korean Confederation of Trade Unions (KCTU). As the daily said, the Article 21 of the Constitution does not recognize the state`s licensing of assembly and association. However, the Article 37 of the Constitution states that the freedoms and rights of citizens may be restricted by law. The police`s decision not to allow the protest is in accordance with the law on assembly and demonstrations allowing the state to prohibit a rally that is clearly expected to pose a direct threat to the public safety and order. The police`s move has nothing to do with the questions of whether the country adopts a permission system for public rallies.

The First Amendment of the U.S. constitution guarantees citizens` right to rally "peaceably." The German constitution also guarantees the freedom of rallies with strings attached: "peacefully" and "without weapons." The French constitution does not have any provision on the freedom of assembly, while Britain has no written constitution. All in all, freedom of assembly is essentially freedom of peaceful assembly. Although South Korea`s Constitution does not have the important modifier, the stipulation that licensing of assembly and association is not recognized is based on the premise that the assemblies must be peaceful.

The KCTU`s first rally in downtown Seoul on November 14 was tainted with violence. If the same group organizes the second rally, would it not be clear that the protest will pose a threat to public order? No police in any country would allow a group with previous records of violent protests to organize another rally. More than 90 percent of violent protests so far this year were organized by the KCTU. The police have been too lenient on the labor group`s rallies. The law enforcement agency is under criticism, which it does not deserve, because it has failed to do what it should have done under law.

Under current law, it is demonstrators` right to decide whether to put on a mask or not. However, it is the police`s right to track down masked protestors involved in violence to punish them. To be more accurately, it is their duty. They must never fail to identify violent protesters in any way possible including spraying paint on them. France and Germany, which have a greater democratic tradition than we do, have laws prohibiting demonstrators from wearing masks. We can surely say it may be masked protestors who are violating the Constitution, but banning masked demonstrations is not.

pisong@donga.com