Saturday, September 11, 2010

Judges Take Taiwan Another Step Forward

Last month we saw some amazing work by Taiwan's judges in forcing the government to maybe kinda think about honoring its environmental laws and declarations in the central Taiwan science park expansion case. This week Judge Chen Ssu-fan gave the Assembly and Parade Law a thwack! on the head. Taipei Times notes:
In a stunning turn of events in a 23-month-long court battle, a judge has decided to suspend the hearing and ask for a constitutional interpretation on whether illegal restrictions have been placed on the public’s right to assembly and on freedom of speech.

Taipei District Court Judge Chen Ssu-fan (陳思帆), presiding over a case where a university professor was arrested for holding a sit-in without a permit, said on Thursday night that the controversial Assembly and Parade Act (集會遊行法) would be passed on to the Council of Grand Justices to determine the constitutionality of several of its clauses.

The judge said in the meantime he did not have enough information to make a ruling in the case against National Taiwan University assistant professor Lee Ming-tsung (李明璁), a leader of the Wild Strawberries student movement in 2008.

On Nov. 6, 2008, the sociology professor led dozens of university students as they held a two-day sit-in at Liberty Square in Taipei to protest a police crackdown on the display of the Republic of China (ROC) national flag and the playing of Taiwanese songs during a visit by Chinese envoy Chen Yunlin (陳雲林) earlier that week.
The always awesome David on Formosa has the background:
The Assembly Law was enacted in January 1988, only six months after Martial Law came to an end. It has been widely criticised by civil society groups for restricting freedom of speech and giving police too much power. The law came into the spotlight during the visit of Chinese official Chen Yunlin (陳雲林) to Taiwan in November 2008. The heavy handed tactics of the police during that time gave rise to the Wild Strawberry Movement. One of the movement’s key demands was to amend the Assembly Law which they claimed limited freedom of speech.
The Taipei Times further stated:
Article 4 and Article 6 of the act state that protesters cannot speak in support of communist or pro-Taiwanese independence activities and that protests cannot take place near certain government buildings, airports, military installations and embassies.

The act also states that permits for protests must be applied for in writing with local police departments beforehand and that protests can be canceled or moved by the government because of adverse weather conditions or other “serious events” — without further elaboration.
After martial law was revoked the KMT government passed a bunch of national security laws that were martial law in all but name, of which this law is one. The judge recognizes the clearly authoritarian nature of the law and sent it up to the Supremes for review. Judicial spine is something Taiwan needs more of; kudos to Judge Chen for showing some.

I talked to some of the Wild Strawberry protesters in Tainan in 2008 about the Assembly and Parade Law. They said:
First, we hope that President Ma and Premier Liu will apologize for the recent police violence. Our second goal is that the heads of the National Police Administration and the National Security Administration step down. Third, we hope that the Assembly and Parade Law will be revised. We ask that it be revised in four directions. First, we'd like to change the application for a parade permit to a notification system, just like in the US, where you just notify the police that you will march, instead of asking permission to hold a march. That way the police will not be saying who can protest and who can't. The second thing we want changed is the Police Administrative Judgment authority. At present the police can decide when they will go arrest people and when they won't. [drowned out by traffic and crowd noises.] The third change we want is that at present violations of the Assembly and Parade Law are criminal acts under the law and determined under criminal law, so you can be sent to jail for a year or two years, for example. We believe that this is against the freedom of the people. We want that changed so that violations fall under the administrative laws and only fines are handed out for violations of the Assembly and Parade Law, so you won't get a year or two for violations of the law. Finally, we want them to lift the restrictions on places where assemblies and parades can be held. These restrictions are a violation of the basic rights and freedoms laid out in the Constitution. Now [the Assembly and Parade] law is clearly of lower status than the Constitution, but it has [unintelligible] the Constitution. So we think it should be revised.
Such cases remind that the democratic transition is still ongoing in Taiwan. It is interesting to contrast this progressive, democracy-oriented ruling with the sick failure of the judges in the US to support democracy in the case in which the higher Court allowed the Obama Administration to invoke State Secrets to prevent lawsuits on the kidnapping and torture program of the Bush Administration. Shameful.
Daily Links
Don't miss the comments below! And check out my blog and its sidebars for events, links to previous posts and picture posts, and scores of links to other Taiwan blogs and forums!


mike said...

It is surely premature to be calling it a "step forward" though Turton; I'll wait until the law is either repealed or substantially weakened. Lee Ming-tsung's tactics are admirable; his was a vivid realization of the necessity of breaking the law in defense of freedom.

Michael Turton said...

Its a baby step, but a step. Sign of independence. I'm sure the higher court will affirm the constitutionality of the A&P law, but you never know....

Michael Turton said...

perhaps mike but if you give taiwan a chance, it may surprise you.

Hans said...

"If you give Taiwan a chance, it may surprise you."

You're right, Michael. If there is one positive thing about the overall inconsistency and unpredictability of Taiwanese Politics, is that it never ceases to surprise, even in the slightest faith of hope. If you look back in the recent 50 years by decades, you would never had predicted what had happened, for good or bad.
The first direct election of the presidency in the 90's, the presidency of non-KMT in the turn of the millennium, and who would had predicted the dirty side of the court could be revealed??
It's just the best example of "there's always hope" like the Americans always say.

David said...

Michael, did you see this piece about the Senkaku Islands by Nicholas Kristof on the New York Times website?

He essentially says that because Chinese maps from the 19th century show the islands as Chinese then they should be recognised as Chinese territory. It's a ridiculous and dangerous claim.

Michael Turton said...

Thanks David. I saw it yesterday and left a comment there.