Illegal Protests and the Limits of the Rule of Law?

The government accepted the court’s mediation proposal and gave up its claim for damages arising from the illegal protests in Gangjeong Village. The amount of damages it abandoned was no less than 3.45 billion won. Individual police officers agreed to pay a total of 60 million won to the bereaved family of Baek Nam-gi for negligence in directing and operating the water cannon.

Freedom of assembly receives strong protection because it is an “extraordinary” means, an exception within representative democracy. South Korea already broadly recognizes freedom of assembly, and it also has an institutional framework that allows for prompt judicial injunction review when permission for an assembly is denied. Assemblies presuppose large crowds. Given the force that illegal assemblies, including violent protests, can exert, it is essential to deter illegal assemblies and to maintain order at assemblies through police personnel.

Except in cases where defeat is clearly expected, the government ordinarily rarely accepts mediation proposals. It also seldom accepts a first-instance ruling, and it is common for cases to go all the way to the Supreme Court. That is because arbitrarily deciding to waive a claim or forgo an appeal may invite suspicion that the administrative act is unfair. The government’s rights are not the rights of individual public officials or individual politicians, so the fairest course is to follow the courts’ legal reasoning and judgment. The government had already compensated the contractor 27.5 billion won for obstruction of construction caused by Gangjeong Village residents and civic groups. It then sought indemnity from the Gangjeong Village residents and others who had caused that situation; if no responsibility is imposed in this regard, the national treasury simply bears the loss.

What effect does this produce? It signals that no matter how illegal one’s conduct may be, if circumstances become favorable to those responsible for that illegal conduct, the illegality is effectively excused. Above all, by handling the matter in a way that left the government not objecting to the court’s compulsory mediation, both the judiciary and the executive—institutions that are supposed to check each other—can be said to have abdicated their roles. If the outcome of litigation changes depending on political power, then future government litigation will become one in which those with power bear no responsibility and those without power do.

What we commonly translate as “democracy” is in fact closer in origin to the idea of “rule by the majority.” Article 1, Paragraph 1 of the Constitution defines the Republic of Korea as a democratic republic, meaning not simply “rule by the majority” but a state for the people, one in which the people are sovereign. Government assets are not tax revenues collected only from supporters of one political faction; they are the hard-earned money collected from all citizens. To abandon a damages claim under the influence of a particular faction is to make all citizens exist for the sake of some faction. That is not the path a democratic republic should take.

If damages caused by illegal assemblies cannot be claimed, then it must at least be possible to maintain order so as to prevent assemblies from developing into illegal ones. Yet as seen in the Baek Nam-gi case, individual police officers were placed in a position where they had to compensate Baek Nam-gi’s bereaved family. The courts’ current assessment of public authority is almost like blaming human beings for failing to become gods. There are urgent circumstances and unfolding situations. Each time, it is impossible for human beings to make decisions after considering every conceivable alternative. If police officers are held individually responsible for failing to do so, how can they be expected to maintain public order? If police are exposed to the risk of civil liability under unreasonable standards, the only option left for frontline officers will be bureaucratic inaction.

That effect has already appeared immediately. On November 22, an executive of Yuseong Enterprise was reportedly severely injured in a group assault by union members, suffering injuries requiring 12 weeks of treatment, while responding police officers neither attempted to rescue the victim nor arrested the assailants in the act, and merely stood by and watched. What would happen if the police tried to stop the attackers and one of the attackers were injured? Police officers have now become human beings who must prove that, in urgent circumstances, even a god could not have done better. Lee Hae-chan, leader of the ruling Democratic Party, criticized the police’s conduct, but he should ask himself whether it was not this government in the first place that encouraged such passivity by the police.

The goddess of justice, Justitia, holds a sword in one hand and scales in the other, and she is blindfolded. If the standard of law wavers according to political power, and if public authority’s efforts to preserve order are judged by standards fit not for humans but only for gods, then there is no reason for the goddess of justice to be blindfolded and hold scales. Rather than dividing people into “my side” and “the other side,” I once again hope to see a proper legal order firmly established.

Youngseob Won / Attorney

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Original title: 불법시위와 법치주의의 한계는?

Author: Young-seop Won

Date: 2018-12-05

Source: https://www.cfe.org/bbs/bbsDetail.php?cid=column&pn=15&idx=11282