Almost a month after the March 18 start of the Sunflower movement and occupation of the Legislative Yuan, more than 200 people who participated in the protests are being investigated. The right to protest as it is represented in constitutional law is a good starting point to assess the legal culpability of the protesters.
The concept of the right to protest derives from the theory of natural rights and has been defined as the right of individual citizens, when the state does violence to their human dignity, to protect their own rights, freedom and dignity and in the absence of any viable alternative, to protest against laws that have been implemented; or as one of the guarantees of constitutionalism, being the right of citizens to stand up and protest when a government is deemed to have abused its powers and violated the constitution of the country, seeking to restore the correct running of constitutional government.
A 1962 ruling in Japan came to this conclusion regarding the criteria required to exercise the right to protest: The conditions for allowing the right to protest are met when, first, the fundamental order of democracy is seriously threatened, so that the continued survival of the constitution itself is in jeopardy; second, when the state can clearly and objectively be shown to have behaved in violation of the law; and third, as the last resort to restore law and order when all other legal avenues provided for by the law and in the constitution have been found lacking. The first of these has been criticized for being too strict.
The Sunflower movement was born when a group of protesters consisting predominantly of university students took the relatively extreme measure of occupying the legislative chamber after Chinese Nationalist Party (KMT) Legislator Chang Ching-chung (張慶忠) unilaterally announced the end of the review into the cross-strait service trade pact.
Chang’s action, however, was merely the straw that broke the camel’s back, the last of a long line of incidents dating all the way back to then-Association for Relations Across the Taiwan Straits chairman Chen Yunlin’s (陳雲林) visit to Taiwan in 2008, when the government attempted to suppress citizens’ rights to expression, assembly and the freedom to conduct business.
These incidents also included the political turmoil of September last year, when the executive branch of government tried to interfere in the running of the legislature by attempting to force Legislative Speaker Wang Jin-pyng (王金平) to resign, thereby violating the principle of the separation of powers.
To these were added the signing of the pact and its potential impact upon people’s rights to employment and to make a living, not to mention Taiwan’s very status as a nation, which are major issues concerning constitutional government. As the government negotiated the agreement behind closed doors, the lack of transparency and the sense of urgency in getting it passed in the legislature has meant that whether it is passed is no longer a simple matter of procedure. Also, it is debatable whether the judiciary will be able to solve the resulting constitutional crisis.
In the past, governments guilty of committing human rights violations have, under the guise of upholding the law, pursued those who have exercised their right to protest, saying that their actions were illegal. The students who took part in the Sunflower movement may well face prosecution, either under civil or criminal law.
If any of these individuals are taken to court, whether the right to protest will be upheld in court will be up to the judges called upon to hear these cases, and their compassion and humanity.
Lee Ren-miau is a law professor at National Chung Cheng University.
Translated by Paul Cooper
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