By Liu Ching-yi, Lai Chung-chiang, Huang Kuo-chang 劉靜怡 賴中強 黃國昌
Monday, Jul 20, 2009, Page 8
On June 3, shortly before the end of the last legislative session, the Chinese Nationalist Party (KMT) caucus tabled its latest proposed amendment to the Assembly and Parade Act (集會遊行法). It publicized the proposal the next day, claiming to have considered criticism and opinions from civic groups and opposition parties. In reality, however, the draft is full of proposals designed to suppress civil freedoms while giving the police room to abuse their powers. This draft is far removed from what civic groups want, namely a guarantee to the public’s right to hold assemblies and parades.
The draft contains a number of absurdities, which are summed up in the following six points:
One, why can’t we demonstrate in front of the Executive Yuan?
The Executive Yuan is the seat of the Cabinet and is the nation’s highest executive body. Policies, draft legislation and the budgets of all ministries have to be sent there for approval. If people are unhappy with government policy, where are they supposed to protest if not at the Executive Yuan? Article 6 of the draft proposes a ban on assemblies and parades in a restricted zone with a radius of 300m around the building so the Cabinet mandarins cannot hear the voices of protest.
Two, while the draft says advance notice must be given for demonstrations, it actually means permission would be needed.
The KMT keeps saying arrangements for assemblies and parades will be changed to an advance notice system. However, Article 9 of the draft says that, when giving advance notice, organizers must show an agreement signed by whoever is responsible for managing the demonstration venue. That would be understandable if it referred only to private venues and non-public spaces. But why should people have to apply for permission from government departments for gatherings in places such as Liberty Square and Ketagalan Boulevard? How does that differ from the current law? Is that what the KMT calls “giving the streets back to the people?”
Three, do protests by civil groups cause more disruption than religious processions?
Every year there are a number of processions where statues of Matsu are carried around the countryside. Sometimes hundreds of thousands of people take part in these parades, which travel from town to town along major roads for up to eight days. We have never heard that these processions cause unrest because organizers do not give prior notice. In the case of the Baishatun (白沙屯) Matsu procession, the route can’t be reported in advance because organizers cast divination chips at each intersection to ask the deity which way to go. Article 4 of the KMT’s draft says prior notice is not needed for religious activities, but makes it compulsory for processions of a political or social nature.
Four, police can order demonstrators to disperse, making them both player and referee.
Maintaining order at gatherings means tough work and long hours for the police, so it is not surprising if they develop a confrontational attitude toward participants. Article 24 of the draft calls on the police to decide for themselves whether a gathering or march is seriously disrupting traffic or threatens national security and needs to be dispersed, and then allows them to disperse the gathering by force if necessary. This would confer on the police the triple powers of administrative, judicial and executive officials.
Five, if people are not violent, why should they be ordered to disperse because of their association with those who are?
If some people behave violently at a peaceful march or gathering, the police should help the event’s marshals to remove the offenders, rather than ordering everyone to disperse. Article 24 of the KMT draft gives police broad powers to issue and enforce dispersal orders, but does not restrict police from using force to disperse people attending a peaceful assembly. This would mean that, as soon as they have issued the usual three orders to leave the area, the police with shields and batons could start forcing every participant to leave.
Forcefully dispersing people attending a peaceful gathering is nothing other than the ancient concept of punishment by association. It flies in the face of the notion of proportional response, with no respect for human rights.
In constitutional interpretation No. 445, the Council of Grand Justices ruled that regulations about dispersing public gatherings are unconstitutional, asking rhetorically: “In respect of the ‘likelihood that public safety or freedom will be jeopardized, or there will be serious damage to property,’ is it appropriate to deny other participants the right to hold an assembly or a parade if merely a couple of participants have acted to that effect?”
For the KMT to push for this kind of medieval collective punishment in the 21st century is ridiculous.
Six, the police have even greater powers than judges to impose penalties.
Although the KMT draft abolishes criminal penalties for public order infringements, it replaces them with administrative penalties, giving police stations the power to directly impose fines of up to NT$200,000. This would give the police even more power than they have now to ride roughshod over civil rights.
At present, people accused of violating Article 29 of the Assembly and Parade Act have to be formally charged by prosecutors and have their cases heard by district courts to determine guilt or innocence before a penalty is imposed. If found guily, they are entitled to appeal to the High Court. In practice, even when found guilty, offenders are usually punished with a jail sentence of a few weeks, or six months at most, convertible to a fine.
Even if someone is sentenced to six months in jail, when converted into a fine — at the rate of NT$1,000 per day — it only comes to NT$183,000. Such a fine can only be imposed after formal indictment and a public trial with leave to appeal. The KMT’s draft, however, would empower the chief officer of a police precinct to impose a fine of NT$200,000 with no trial and no appeal. These unbridled powers exceed those of a judge.
We call on the KMT to change track and sincerely try to implement the basic right to take part in assemblies and parades, as enshrined in our Constitution and the International Covenant on Civil and Political Rights, which the government recently ratified. If the KMT persists in trying to push through fake reforms, the public will eventually see through their devious tactics.
Liu Ching-yi is an executive board member of the Taiwan Association for Human Rights. Lai Chung-chiang is an executive board member of the Platform for the Defense of Democracy. Huang Kuo-chang is a standing executive board member of the Judicial Reform Foundation.
TRANSLATED BY JULIAN CLEGG
http://www.taipeitimes.com/News/editorials/archives/2009/07/20/2003449120
