Administrative lawsuits followed one after another due to Corona… A look at the court’s choice among ‘protection of basic rights vs. quarantine’

On the 5th, a notice is posted at a large academy in Sinchon, Seoul announcing the suspension of the quarantine pass. 2021.1.5 / Reporter Lee Jun-heon

As Corona 19 continued for the third year, administrative lawsuits were repeated several times over the government’s quarantine measures, including quarantine passes. The issue was whether to prioritize the protection of basic rights or the public interest of preventing infectious diseases. The court’s decision was different in each case.

The 8th Administrative Division of the Seoul Administrative Court (Judge Lee Jong-hwan) partially cited the application for suspension of enforcement (suspension of effect) filed on the 4th by parent groups such as the Private Education Association against the Minister of Health and Welfare.

The court decides whether to suspend execution by comparing the ‘recoverable damage’ to be suffered by the administrative disposition with the ‘significant concern to the public welfare’ caused by the suspension of the effect of the disposition. In the case of the quarantine pass, the violation of basic rights was viewed as direct. Those who were not vaccinated were judged to be infringed on their right to education, freedom of career choice, and their right to self-determination with respect to their bodies as their right to learn was limited. On the other hand, he said that the public benefit that can be obtained from the quarantine pass is not clear. If the quarantine pass is not applied, the risk of rapid spread of COVID-19 is low. The court said, “It is questionable whether it can be said that there are sufficient objective and reasonable grounds for the disposition (the quarantine pass) to justify inflicting serious disadvantages on unvaccinated people.”

A feeling of silence flows in front of Sarang First Church in Seongbuk-gu, Seoul on the morning of August 20, 2021, when the Seongbuk-gu Office ordered the facility to close.  / Reporter Kwon Do-hyun

A feeling of silence flows in front of Sarang First Church in Seongbuk-gu, Seoul on the morning of August 20, 2021, when the Seongbuk-gu Office ordered the facility to close. / Reporter Kwon Do-hyun

In the lawsuit in which quarantine measures and religious freedom collided, the number of group members, equity with other facilities, and characteristics of each church were considered. In July of last year, when the city of Seoul banned face-to-face worship due to its four-step quarantine guidelines, the court put the brakes on it. The 11th administrative division of the Seoul Administrative Court (Presiding Judge Woo-chan Kang) said, “Measures to restrict religious events may violate the principle of equality or infringe on essential parts of fundamental rights.” At the same time, considering the importance of quarantine, a condition of ‘10% capacity (up to 19 people)’ was proposed. Exceptions were made if there was a history of violating quarantine rules or violating the order to prohibit gatherings.

In August of the same year, the Sarang First Church in Seoul, which was shut down for violating quarantine rules, filed against the Seongbuk-gu Office, and the application for suspension of execution of the facility closure was rejected. “Even if the closure of the facility may cause irreparable damage to the church, there is a greater need to defend the public welfare to be achieved through the measures,” he said. Sarang First Church ignored quarantine rules several times and conducted face-to-face worship, considering that the number of new corona19 confirmed at that time was more than 2,000 every day.

Members of the Carbon Neutrality Committee dismantling engineering committee, which were made up of youth, social activists, farmers and religious people, gathered from all over the country in front of the Seoul Museum of History in Saemunan-ro, Jongno-gu, Seoul last October, saying, 'There is no neutrality in a burning earth!  10.14 Climate Justice Action' rally is being held.  2021.10.14 / Reporter Lee Jun-heon

Members of the Carbon Neutrality Committee dismantling engineering committee, which were made up of youth, social activists, farmers and religious people, gathered from all over the country in front of the Seoul Museum of History in Saemunan-ro, Jongno-gu, Seoul last October, saying, ‘There is no neutrality in a burning earth! 10.14 Climate Justice Action’ rally is being held. 2021.10.14 / Reporter Lee Jun-heon

In cases where freedom of assembly and quarantine measures collided, the emphasis was placed on quarantine measures in many cases. Analysts say that the August 2020 Liberation Day rally was designated as the epicenter of the re-spreading of COVID-19 and had a significant impact. In the same year, the city of Seoul did not allow one-person vehicle demonstrations on National Foundation Day. The court dismissed the application for an enforcement policy against this, saying that it is “a direct risk to public health”. It was judged that the risk of the spread of COVID-19 was greater than the damage caused by the violation of freedom of assembly. In November of last year, the application for suspension of execution of the assembly ban issued by the Cargo Solidarity of the Public Transport Workers’ Union of the KCTU was rejected.

As the number of people vaccinated increases and the COVID-19 outbreak prolongs, there is also a trend to find a balance between freedom of assembly and quarantine. In October of last year, applications from the courier union and the climate crisis emergency group were accepted one after another. The court, citing the parcel delivery union’s application for suspension of enforcement, said, “The total ban on outdoor gatherings in Seoul is an excessive restriction even considering the need to prevent the spread of COVID-19. It is not likely to cause a significant adverse effect on public welfare if the quarantine rules are strictly followed.”

Reference-www.khan.co.kr

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