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The shallow roots of civil rights in Taiwan

"... and no warrant shall issue, but upon probable cause ... and particularly describing the place to be searched and the persons or things to be seized."

The words from the 4th Amendment, of the US Constitution come to mind when considering the recent search of the China Times Express (中時晚報) newspaper office as well as the homes of two journalists who worked for them.

These incidents serve to illustrate how weak civil liberties are in Taiwan, how few constitutional rights we actually have and how quick, in the name of some higher interest, the state is to ignore civil liberties.

The point of this commentary is not to argue the specifics of the searches. Rather it is to look at how shallow the roots of civil liberties are here in Taiwan and how easily they are trampled on.

The newly elected government, like its predecessor, has always been quick to proclaim its support and commitment to such buzz words as "human rights," "civil liberties," "rule of law" and "democracy."

The reality is a sharp contrast to the political "buzz."

In my analysis the current government, like former governments, has no deep commitment to any of those buzz words.

They were used, as politicians all around the world are prone to using words -- either simply to get elected or to keep their image spun the right way.

If one steps back and looks at the state of civil liberties in Taiwan, they do not look very strong.

The Constitution has no Bill of Rights. The few constitutional protections that are mentioned in the Constitution are so vague as to be meaningless and they are usually qualified by some phrase such as "except when permitted by law" or "except when the safety of social order is in danger."

This problem is compounded by the fact that the Counsel of Grand Justices (大法官會議), the judicial body charged with the protection and interpretation of the Constitution, can be described as slightly less than useless when it actually comes to defending civil liberties.

Also there is the fact that in Taiwan's system of jurisprudence, which is a kind of hybrid German system, there is no case law, no body of precedents that trial judges can use to determine constitutional issues.

This further weakens civil liberties.

I actually have a prediction that our civil liberties will over the next few years begin to erode. The erosion will take place under the cover of fighting "black gold politics" (黑金政治) or "stemming the tide of social degeneration" or some other higher cause.

Some Chinese language commentators have said that the current situation is no different than the old martial law. That may in fact be true.

So my dire prediction is based on a number of factors. I hope I am wrong.

Let me close with a practical tip for the prosecutors -- since in my commentaries I try not only to point out problems but I also try to present reasonable solutions.

If the prosecutors want to find out how the newspaper got the interview/witness statement that found its way into print, Sherlock Holmes Brian has a suggestion. They ought to begin their search in their own offices.

Sherlock Holmes Brian has a suspicion that some clerk or some staff member within the government itself is responsible for leaking the statements.

The prosecutors would do well to "raid" their own offices. They might find the culprit.

Brian Kennedy is an attorney who writes and teaches on criminal justice and human rights issues in Taipei.
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