TAHR's statement regarding Constitutional Interpretation No. 718

Taiwan Association for Human Rights has issued a statement regarding the Grand Justices’ Interpretation No. 718 regarding the constitutionality of Taiwan’s Assembly and Parade Act. According to their statement, the Grand Justices failed in preserving the right to assemble, and excessive power still lies in the hands of authorities.

__________

Taiwan Association for Human Rights’ statement regarding Constitutional Interpretation No. 718 

During the visit of Chinese envoy Mr. Chen Yun-lin at the end of 2008, the excessive and reckless force against protesters, under the pretext of national security, caused a series of demonstrations held by civil society organizations (CSOs) in Taiwan, as well as gave rise to the Wild Strawberries Movement. One of the requests from these organizations and students was to amend the Assembly and Parade Act. They urged the Legislative Yuan to amend this Act promptly, so as to fulfill part of the agenda set by President Ma Ying-jeou of returning the street to the citizens. However, during this student and citizen movement, Prof. Lin Chia-fan, the former president of the Taiwan Association for Human Rights (TAHR), and sociology professor Ming-tsung Lee from National Taiwan University were prosecuted for violating the Assembly and Parade Act.

Prof. Lin Chia-fan was found not guilty by Taiwan High Court on Feb. 23, 2012. In Prof. Ming-tsung Lee’s case, after nine court sessions in Taipei District Court, the presiding judge, hearing the defense from volunteer attorney and evidence brought out by scholars and experts, suspected with reasonable assurance that several articles in the Assembly and Parade Act may be in conflict with Taiwan’s Constitution. Therefore, he suspended the litigation procedure and submitted a petition to the Grand Justices of the Yuan for a judicial interpretation. After more than a thousand days of waiting, the Grand Justices issued Interpretation No. 718.

The complete and full protection of civil and political rights has been the concern of our association. We have been advocating amendments to this improper Act so as to achieve freedom of speech. Interpretation No. 718, however, does not solve the critical issues and fails to embody the values of freedom of speech. Our opinions are as follows:

According to Interpretation No. 718, it is unconstitutional that relative articles regarding permits in the Assembly and Parade Act do not exclude the situation of “the urgent and incidental assembly or parade.” This Interpretation still embraces the authoritarian thinking held by the current Assembly and Parade Act. The Grand Justices think that assemblies or parades without permit can circumvent the approval of competent authority in Article 8 of the Assembly and Parade Act, only under the situation that “due to unexpected major emergency, the assemblies or parades must be held immediately to reach the desired purpose” (Article 9, Section 1 of Assembly and Parade Act). However, the competent authority is authorized to grant an approval or a disapproval for an outdoor assembly or parade, “within 24 hours of receipt of the application" (Article 12, Section 2 of Assembly and Parade Act). These articles are in fact very hard for people to abide by. In other words, the Grand Justices think that for “non-urgent and non-incidental assembly or parade” people still need to apply for a permit in advance; otherwise, it is illegal. Also, the competent authority is still authorized to reject any application or stop an assembly or parade as it sees fit.

TAHR has always advocated for applying a voluntary notice regulation to every kind of assembly and parade. The current “permit regulation” authorizing administrative authorities to wield excessive power through approving and disapproving permits has caused a situation where “the applicants’ opinions and reasons for their assembly can be reviewed before approving or rejecting their application.” In practice, requiring permits to set restrictions on “time, location and method” can weaken the advocacy and opinions of the people wanting to assemble. On the contrary, the voluntary notice regulation is in accord with the recognition to the right of peaceful assembly, stated in Article 21 of the International Covenant on Civil and Political Rights (ICCPR). Under this regulation, people who organize the assembly or parade may determine if it is necessary to request for assistance from the government for the assembly or parade. If people need the government to fulfill their duties in providing assistance to the assembly or parade, prior notice is necessary. On the contrary, if there is no need for active assistance from the government, people have the right not to give notice, and organize the assembly or parade on their own.

This Interpretation of the Constitution deals with petitions not only from the Ming-tsung Lee’s case mentioned above, but also that from Taiwan Taoyuan District Court regarding Mr. Chen Da Cheng’s case (陳達成), as well as that of Mr. Lin Buo Yi’s (林伯儀) anti-high tuition case. Petitioners think that, in addition to Articles 8, 9 and 12 of the Assembly and Parade Act, the penalty for masterminding in Article 29 and the other related articles (Articles 2, 4, 6, 8, 9, 11-16, 18, 22, 24, 25, 28) may also contravene the Constitution. It is very disappointing that in their interpretation, the Grand Justices did not give respond to these articles. Moreover, Interpretation No. 718 neglects the consensus of all parties in the Legislative Yuan in favor of the decriminalization for penalties regarding assembly or parade. It is foreseeable that a peaceful assembly or parade will still be vulnerable to criminal prosecution and threat of penalty imposed by law enforcement agencies.

Over one thousand days after the petitions were filed in the Judicial Yuan, an interpretation that some articles contravene the Constitution was finally announced. Nevertheless, it is too conservative and merely deals with a smattering of articles, neglecting the controversial structural problem of the Act. This interpretation has gone counter to modern Taiwanese society, and is contrary to the emphatic support for assuring the right for assembly and parade in international society.

In the end, we still need to remind people of their responsibility to monitor the government. During President Ma’s first presidential campaign in 2007, he put “the amendment of Assembly and Parade Act” at the top of his agenda. However, the KMT, as the majority party in the Legislative Yuan and the party which President Ma serves as chairman, has failed to make a contribution to the amendment. Through the Assembly and Parade Act, it is obvious that the government has planned to continue restraining fundamental rights protected under the Constitution. In the face of an incompetent government, people must fight for their rights. Protesting on the street is exactly the first step in reclaiming them. 

Translation: Jill Li