Thu, Apr 12, 2012 - Page 8 News List

Victims have every right to resistance

By Chen Miao-fen 陳妙芬

The recent demolition of properties along Wenlin Road in Taipei’s Shilin District (士林) is an example of government abuse of power and breaking the law to implement urban renewal. Such incidents are likely to continue unless certain articles in the Urban Renewal Act (都市更新條例) are amended. These include Article 25 on forced expropriation, Article 34 on building license applications and advance sales and Article 36 on demolitions and evictions by the public authority.

It is therefore necessary to clarify three basic legal issues concerning the law and to do so through popular resistance. These issues are human rights safeguards, the validity of laws and civil disobedience.

Citizens’ individual property rights and freedom of movement, including their right to live or move to where they wish, are all basic rights protected by international human rights conventions and the Constitution. In other words, unless otherwise dictated by due process and legislation that conforms to the principles of necessity and proportionality, no person or government body has the right to deprive anyone of these rights. There is no need for local authorities to wait for the central government to amend the relevant laws, because both law and reason dictate that urban renewal should be carried out in such a way as to safeguard citizens’ rights.

If necessary, the authorities can apply for a constitutional interpretation, but any contentious projects should be put on hold until such an interpretation has been made. The Taipei City Government has in the past sought constitutional interpretations regarding the law and the limits of its own powers in relation to various issues, including withholding payment of national insurance fees it felt were unreasonable, the postponement of borough warden elections and the “one guideline, multiple textbooks (一綱多本)” policy. It should thus be familiar with the Council of Grand Justices’ role.

Following the bitter experience of Nazi misrule, German legal philosopher Gustav Radbruch proposed limits to the validity of laws. Based on the principles of soft legal positivism, he posited that statutory laws must be disregarded if they are incompatible with the requirements of justice “to an intolerable degree.”

The reason why the Urban Renewal Act has caused so much public anger is that its clauses on majority consent, forced demolition and eviction clash with what most people consider to be just. These clauses need to be completely overhauled; simple amendments will not be enough.

Law is dynamic, which means statutory laws are not perfect and will not necessarily become so even after interpretations and amendments are made. Legal theory holds that even if a particular law is largely recognized as valid, that does not negate people’s constitutional right to peacefully resist its execution if they find their basic rights have been seriously violated or denied.

Civil disobedience is the nonviolent expression of a right to resist in defense of one’s basic rights and it is a natural right that is universally recognized in international human rights doctrines and covenants.

The actors in the ongoing urban renewal drama have various rights and responsibilities. These include homeowners who willingly signed up for the renewal project, buyers who paid in advance for future apartments on the site, and the contractors. They all have the legal right to apply for a judicial remedy, financial support or compensation.

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