Thu, Oct 18, 2007 - Page 8 News List

Are `home visits' unconstitutional?

By Hsu Yue-dian and Chen Be-yu 許育典.陳碧玉

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 (警察勤務區家戶訪查辦法), that are authorized by Article 11 of the Regulations on Police Duties (警察勤務條例) is really in accordance with the Constitution?

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.

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