Taiwanese parents used to deter their children from misbehaving by saying, "Stop it, or the police will come and put you in jail!"
It was just a way grown-ups tried to scare children, but it reflected a common attitude toward the police, an attitude that went back to the era of the Japanese occupation.
A frightening headline appeared in the news recently, saying that next year, the police will be armed when conducting "home visits."
Later, the National Police Agency said that police would not actually carry arms when conducting home visits, but only when they are on patrol. The difference between home visits and patrols might become muddled if police conduct a home visit while on patrol, but let's put this issue aside for now. The important question is whether home visits are legal and if this is in fact a legitimate practice.
The concept of freedom of domicile goes back to the Roman era. Roman law said that someone's home is their safest shelter. Similar laws in the UK and the US are based on this idea. The freedom of residence mentioned in Article 10 of Taiwan's Constitution protects not only people's residences, but also the right of privacy in their own home.
According to Article 23 of the Constitution, under certain circumstances, the state can abridge people's basic rights by law. But does that mean that the Regulations for Home Visits as a Police Duty (
Article 11, Section 1 of the Regulations on Police Duties says that the regulations on "home visits" will be determined by the Ministry of the Interior. This section makes it clear that the aim of home visits is to "prevent crime, serve the people, and conduct public security investigations," but the actual proceedings and scope of such visits are not explained. This clearly violates one of the principles of the rule of law, namely that it has to be made clear what exactly is authorized.
This regulation also goes against the constitutional principle of reservation of law. Article 8, Section 2 of the regulations on home visits gives the police the authority to determine which cases should be investigated.
Such regulations are tantamount to throwing the door wide open, turning freedom of domicile into a mere figurehead, and that is a shame.
In addition to the legal aspects of home visits described above, they are also wrong in that they infringe on people's right of domicile.
In the end, the most important aim of home visits is preventing crime, and even investigating crimes. However, authorized by Article 15 of the Police Duties Enforcement Law (警察職權行使法), the ministry has already laid down regulations for perceived threats to public security and investigating the population, and believes that it has taken sufficient precautions to prevent crime.
These days, home visits are a common occurrence. There's nothing left of rule of law in Taiwan if every person is treated as a possible criminal. In case of emergency, the police can still conduct a house search, as stipulated in Article 131 of the Criminal Procedure Law (刑事訴訟法).
Therefore, establishing a system for home visits on top of the existing rules is superfluous. And the system is simply wrong, as it provides a way to evade the rules laid down in the Criminal Procedure Law.
But there is an even more serious problem hidden in the regulations on home visits. Article 17 of those regulations states that material acquired during a home visit is for internal use only, unless it is stated otherwise in the regulations. But there are broad exceptions to this rule: If "the welfare of the public demands it" the material can be made public.
But are there any police affairs that are not related to public welfare? If this continues, everything anyone does will be known, and the government will end up monitoring the public.
The police should only invoke these rights with the purpose of protecting the rights of the public.
Unfortunately, the police is often a tool used by the state to control its citizens.
The recent amendment of the Regulations for Home Visits as a Police Duty shows that if Taiwan wants to implement genuine rule of law, it still has a long way to go. Article 6, Section 2 of the regulations on home visits says that if, in case of a home visit, the police do not identify themselves in accordance with the rules, residents have the right to refuse them entrance.
But people always have the right to deny the police entrance to their home.
When they see a rule like that, people start to wonder: Can it be that we cannot refuse the police entrance if they identify themselves in accordance with regulations?
The answer, of course, is no: They still don't have to let the police in.
Constitutional Interpretation No. 535 of the Council of Grand Justices explains clearly that "the police shall limit checking authority to public transportation, public places or other places where danger exists or may exist according to reasonable and objective judgment."
When there is no threat or danger, a country that calls itself a human rights-respecting nation, like Taiwan does, cannot allow the police to come into people's homes while armed.
Shouldn't the people in charge, who often talk about human rights, be ashamed of themselves?
Hsu Yue-dian is a law professor at National Cheng Kung University. Chen Be-yu is a graduate student.
Translated by Anna Stiggelbout
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