NTU Public Forum Held Discussion on "Parade and Assembly: Liberty or Restraint?"
The Constitution of the Republic of China (Taiwan) clearly states that citizens have the rights of assembly and association. In an atmosphere where both the ruling party and the opposition parties all favor amending the "Parade and Assembly Law," consensus is still lacking in regard to substantive issues such as: do civilian rallies or demonstrations need to be approved by the authorities before they are being waged? Or is it sufficient for the organizing agencies to report these rallies and protests in advance? Should restricted areas be set up for the demonstrators? Should someone be held responsible for the protests? Can the police use force to dispel the protestors? Etc.
Propelled by a concern for our society, NTU's Public Forum (anchored by NTU Vice President Dr. Tzong-Ho Bau) held a press conference on November 28th at the Alumni Association Guest House to discuss in depth the issues surrounding the controversial topic "Parade and assembly: liberty or restraint? " Scholars who were invited to give their opinions at the press conference include Associate Professor Wen-Chen Chang of NTU's Department of Law, Associate Professor Chwen-Wen Chen of NTU's Department of Political Science, Professor Wen-Ling Hong of Central Police University's Department of Police Administration, and Assistant Professor Ming Hsin Lin of NTU's Department of Law. These four scholars expressed their views on the topic from the standpoint of democracy and law, and also cited the prevailing practices in other countries.
Associate Professor Wen-Chen Chang said, Article 11 and Article 14 of our constitution expressly protect the rights of assembly and association for the general public. The grand justices of the Supreme Court also clearly promulgated that, parade and assembly are the most important basic human rights for the implementation of democracy. The government should, therefore, not only protect the citizen's freedom of parade and assembly, but also should provide appropriate location for their gathering. In addition, the government is obligated to safeguard these parades and assemblies so that they could be waged smoothly. More importantly, as parades and assemblies are the simple and direct means for the ordinary citizens who normally have no access to media to express their views to the government, they should be deemed as the most important human rights for the disadvantaged, and as such are all the more in need of constitutional protection.
The protesters or demonstrators, however, are obligated to uphold and respect other people's rights of freedom and public benefits while they are achieving their own freedom of expression with governmental assistance. Therefore, if and when the protesters or demonstrators commit acts in violation of this obligation, they incur legal responsibilities which are punishable by law. Hence, shifting to a report system for parades and assemblies does not necessarily result in acts of disorder which are in violation of the law. Rather, (and this is most important), the report system will deprive the police authorities of their rights to use approval or non approval as pretexts to curb the people's right to express their views through acts of protests.
Associate Professor of Political Science, Dr. Chwen-Wen Chen, on the other hand, articulated his profound views on the issues of "forced eviction of the crowd", "the approval system vs. the report system", "the restricted area and the protest area," and "responsibilities of parade and assembly activities." Dr. Chen said, although protests and demonstrations are acts of assembly which epitomize freedom and democracy, they can also create hazards to social order and safety. Therefore, the law should protect peaceful acts of protest and demonstration, but should also punish illegality and acts of violence. To him, whether the norms of punishment should be inserted in the "parade and assembly law" or the penal code is not important; what is important is whether the means of criminal sanctions should be ruled out completely.
According to Section 9, Article 431 of the French Penal Code, those who did not report their parade and assembly activities in advance to the authorities are punishable for a six month in prison and a fine of 7500 Euros. And Section 4, Article 431 of the French Penal Code also stipulates that, those among the protesters or demonstrators who are unwilling to disperse after they have been ordered to do so are punishable for one year in prison and 15000 Euros in fines, no matter what their subjective intentions are. In view of this, even though the French laws are much more rigorous than our prevailing laws, the French are nevertheless able to safeguard people's rights to parade and to assemble. Professor Chen further pointed that, the current provisions in our penal code regarding parades and assemblies are simply too cursory. If we do not amend the penal codes or the parade and assembly law, just relying on the penal codes to maintain the order and security of protest and demonstration activities would be far from being sufficient.
Professor Wen-Ling Hong of Central Police University indicated that, in a democratic society, citizens often express their opinions on the government's policy measures through parades and assemblies to form a public outcry. Yet, outdoor protests and demonstrations often need to utilize public resources such as parks and roads, and the noise and trash which result from these activities often infringe upon the right of way, peace and health of other people. In order to allow fair use of the public resources, some kind of balance needs to be achieved between conflicting interests. In the process of Taiwan's democratic development over the last fifty years, although it can be said that Taiwan's democracy is moving toward maturity, there is still a handful of people who lack the correct notions of democracy and who do not respect other people's rights. In a public opinion poll conducted by the government through a civilian agency and released in November, over 70% of the interviewees thought that the government should take a more forceful stand on maintaining orders in public rallies. Such overriding majority bespeak the need on the part of the government to come up with new laws governing outdoor parades and assemblies, and the need to confine these activities to acts of peaceful expression of people's views.
Professor Hong also maintained that, in order to ensure that outdoor assemblies stick to the principle of "peaceful expression of opinions," the laws should impose criminal penalties on those who commit acts of violence. But for those who only violates an administrative order, executive punishment should be sufficient. In the event that law enforcement agencies abuse their power or overstep their boundaries, the people should have recourse to executive relief or national indemnity. On the other hand, when the protesters disregard a restraining order, the law enforcement agencies should have the right to order them to disperse, or the right to detain dangerous objects and to punish their leaders. Those who violate the rights of other people should be subject to civil and criminal punishment in accordance with the appropriate laws.
Assistant Professor Ming-Hsin Lin of NTU's Department of Law pointed out that, the series of protests, acts of siege, and the wild strawberry student movements triggered by the Chinese envoy Chen Yun-Lin's visit to Taiwan have made the issues of whether the current parade and assembly law should be amended, in what ways it can be amended and whether it should be abolished completely the focus of discussion in the legislature and the core of public debate. Yet, strictly speaking, these issues only touch upon the beginning part of the topic of "parade and assembly." Once the rules are set, how do all parties participating in the game, including the protesters, the governing authorities, and the bystanders abide by the rules and how should they be punished if they do not follow the rules need to be discussed as well.
With regard to the punishment for those who do not abide by the rules of the parade and assembly law, special considerations need to be taken for the police and other law enforcement agencies. Actually, our present law provides quite comprehensive regulations concerning these matters. All provisions regarding executive relief and the responsibilities of civil servants are well spelled out, as a result of our nation's enforcement of the administrative law in the last ten years or so. But, whether the citizens know how to apply these provisions of the law correctly, or whether the civil servants possess enough cognition of these provisions, and whether the administrative courts are well prepared to deal with violations are quite dubious and leave a lot to be desired. When we review the responsibility of the police or other law enforcement agencies in regard to the parade and assembly law, this deficiency could pose as our biggest challenge.