basic right of protest

A serious blow to the basic right of protest
　

By Chang Wen-chen 張文貞
Friday, Jun 19, 2009, Page 8

A Taipei District Court prosecutor recently applied for a “summary judgment” on the indictment of National Taiwan University sociology professor Lee Ming-tsung (李明璁), declaring that he was a “prime suspect” in an “illegal outdoor assembly” — a sit-in protest against the visit of Chinese envoy Chen Yunlin (陳雲林) — in front of the Executive Yuan last November.

This was yet another example of juridical abuse of power that did not take into consideration the freedom of assembly, which is protected by the Constitution, international human rights law and the principle of proportionality in Article 26 of the Assembly and Parade Act (集會遊行法).

By staging a peaceful sit-in in front of the Executive Yuan, Lee and his students were exercising their basic rights of assembly and freedom of speech, which are also protected by the Constitution, international human rights law and especially the International Covenant on Civil and Political Rights that was signed by the government into law on May 14.

NOT A THREAT

Lee’s peaceful sit-in was not an immediate threat to anyone’s freedom, safety or possessions, nor was it a clear and present danger to the national security or social order.

The plaza in front of the Executive Yuan is the best place for ordinary people to express their opinions to the government.

So why are applications needed for peaceful sit-ins there? Can protesters be labeled as criminals simply because they did not file an application?

Several years ago, a group of National Chengchi University students staged a protest against high tuition fees in front of the Ministry of Education.

Legal circles were surprised when one of the students was indicted as a “prime suspect.”

At that time, the Taipei District Court commendably insisted on the protection of the student’s freedom of assembly.

PROPORTIONALITY

It cited the principle of proportionality in Article 26 of the Assembly and Parade Act, believing that even if the protest was an illegal outdoor assembly, the police still needed to take into account the balance between the public’s basic right of assembly and other laws and regulations when ordering them to disperse.

The student was found not guilty.

Unfortunately, the prosecutor insisted on appealing the case, and the Taiwan High Court failed to protect freedom of assembly by overturning the ruling of the District Court.

Instead, the court gave the student a choice between detention and a fine on probation.

Perhaps the court believed that it was doing the student a favor by handing down such a light penalty, just like the prosecutor’s application for “summary judgment” on the indictment of Lee.

SERIOUS BLOW

However, the judges were and are possibly still unaware that by doing so they have dealt a serious blow to the basic right of staging peaceful sit-ins in Taiwan.

Reform of the Assembly and Parade Act is inevitable. We should not only abolish the “permission system” in the Act but completely decriminalize such assemblies to protect the public’s basic right to peaceful sit-ins.

I would like to urge the judiciary to act bravely and be the last line of defense for the public’s right to peaceful sit-ins and freedom of speech.

Chang Wen-chen is an associate law professor at National Taiwan University.