Infectious Diseases and Freedom of Assembly: Focusing on the discussion of the revision of the Infectious Disease Prevention Act for Freedom of Assembly
Authors:   Korean Constitutional Law Asscciation, Lee Jang Hee 
Published: January 2023

Since the COVID-19 pandemic in 2020, new mutated viruses have still emerged. With it unknown when the crisis of COVID-19 will end, limiting or banning rallies to prevent the spread of infectious diseases is still an important social issue. Therefore, instead of continuing to follow the ‘Infectious Disease Prevention Act(IDPA)’, which has been criticized as excessive and discriminatory restrictions on freedom of assembly, critical review and revision efforts are needed from the perspective of rational restrictions on human rights. Article 49 (1) 2 of the current IDPA is a legal basis for restricting or prohibiting rallies in the context of the epidemic of infectious diseases, but it is no exaggeration to say that excessive restrictions or discriminatory restrictions on rallies are being made in the reality of enforcement. Fundamentally, the problem would be that our society and government authorities still base their perception of rallies as harmful activities that threaten public well-being and order. More realistically, however, it is important that the current IDPA focuses more on preventing and overcoming infectious diseases than freedom of assembly, while poorly regulating them in abstract expressions that may be abused by administrative authorities. Of course, quarantine measures to protect the lives, health, and safety of the people in the pandemic situation of COVID-19 must also be an important human rights protection effort. As important as the importance of freedom of assembly, it is also an important human rights policy to suppress and prevent the spread of serious infectious diseases immediately to maintain and recover a healthy daily life, and at the same time, it is an important public welfare. Therefore, such special restrictions, which are more restricted or banned from rallies in consideration of the COVID-19 situation, are inevitable. The IDPA is a special law that restricts freedom of assembly in the special situation of infectious diseases. However, such particular restrictions must be more strictly regulated so that abuse can be prevented, and they must be observed in a way that respects basic human rights. In addition, even in the event of an infectious disease crisis, minimum rallies should continue to be possible, and the essential contents of human rights should remain. Freedom of assembly should be limited only as necessary for special situation (the principle of prohibition of excess), and more restrictions should not be made discriminately just because it is a assembly (the principle of equality). Article 49 (1) of the IDPA needs to be revised in the direction of appropriate balance and harmony between the two at a point where the focus is placed on a somewhat special situation between the special situation of infectious disease prevention and freedom of assembly. The recently proposed amendments by civic groups are generally suitable for such purposes and directions, but now legislative attempts are needed to form a national understanding and consensus on the revision of the IDPA.