Late one night around the middle of December last year, police officers in Hsinchu County arrested a man on the grounds that he had violated the Narcotics Hazard Prevention Act (毒品危害防制條例). The man requested a court hearing, which took place the next day.
The Hsinchu District Court ruled that the police had acted contrary to the Police Power Exercise Act (警察職權行使法) by searching a person’s belongings for no good reason, and that there was no substantial evidence to prove the police’s account. In view of these findings, the court released the man.
This is just one of several cases since the amended Habeas Corpus Act (提審法) came into force in July last year in which a court has ordered someone to be released, but in this case the judge wielded the judicial authority that exists under the separation of powers to restrain an administrative organ from abusing its power.
The judge examined the substantial elements involved in the man’s arrest and detention, and put into practice the safeguards that the law provides for personal freedom. This case offers guidance on thinking about the right way for the court hearing system to function and develop.
Personal freedom is the starting point for all other freedoms. The revised Habeas Corpus Act puts into practice the basic purpose of writs of habeas corpus, and is a necessary, but long overdue corollary of democracy and the rule of law.
Under the amended law, the judiciary has a duty to promptly examine cases from the substantial and procedural aspects according to various principles, including facts concerning the detention, its legal basis, necessity and reasonableness.
However, when the Judicial Yuan issued guidance to judges on the content of the amended law, it instead emphasized that, after receiving a request for a court hearing, they could examine only the formal elements of the case, and not the legality and necessity of the actual detention.
The Judicial Yuan’s stance amounts to adding restrictive rules that are not to be found in the Habeas Corpus Act. Furthermore, it may be in conflict with the Constitution and the International Covenant on Civil and Political Rights. The outcome of such a stance will be to almost completely prevent the court hearing system from performing its proper functions.
Regrettably, if you look at the more than 100 relevant court decisions that have been made since the amended act came into force, it is not hard to discover that nearly a quarter of people requesting a court hearing still did not get to see a judge. In more than 20 percent of the cases, there has been no court hearing, but only a formal examination. This situation still makes it very convenient for administrative organs to restrict people’s personal freedom.
Given that the Habeas Corpus Act seeks to put safeguards of personal freedom into practice, judges should do their best to issue writs of habeas corpus allowing petitioners to be taken to a court to “see a judge,” and they must examine the substantial elements on the grounds for arrest and detention.
The act definitely does not provide any excuse for conducting only a formal examination of the elements of a case.
Reference may be made to various international human rights documents, including Article 9 of the International Covenant on Civil and Political Rights and General Comment No. 35 of the Office of the UN High Commissioner for Human Rights, which refers to Article 9. According to these documents, people who are arrested and detained have the right to petition a court of law to examine the legality of the decision to arrest and detain them, and especially to consider whether their arrest and detention was really necessary, whether there were any alternative measures available and whether their arrest and detention were arbitrary.
These substantial elemental questions should all be important points for examination. Otherwise, there is a danger of undermining the fundamental values of the court hearing system. Furthermore, courts may easily become mere accessories to administrative organs that arrest and detain people, thus sullying the judiciary’s reputation.
Since the amended act came into force, a number of judges have continued to conduct substantial examinations into the necessity of arrests and detentions carried out by administrative organs. For example, in some cases concerning the release of foreign nationals who have been detained, judges have generally been willing to intervene by examining the substantial elements of such cases, considering whether it was necessary to detain the petitioner, or whether less invasive measures such as consignment to custody could be applied instead.
In most cases in which foreign nationals have had their petitions for release from detention turned down, the judges have not thoroughly considered the necessity of detention or the possibility of applying alternative measures. The detention of foreign nationals is a temporary measure that is applied pending forcible deportation, so of course other measures can be applied when detention is found to be unnecessary. That is why Article 38 of the Immigration Act (入出國及移民法) states that “the National Immigration Agency may detain [a foreign national] temporarily if a compulsory exit order has been proven difficult or impractical to enforce without detention.”
However, in practice, some judges pay no heed to the existing state of affairs under which Taiwan’s detention system has the effect of completely depriving detainees of their personal freedom. Instead, they define detention as “not” being a state of arrest and imprisonment, which is strange enough in itself.
If they further ignore the instant remedial function of the court hearing system and instead force detained foreigners to follow the slow and winding judicial path of administrative litigation, it is in blatant contravention of the purpose of the Council of Grand Justices’ Interpretation No. 708 concerning the immigration detention of foreign nationals pending deportation.
This is a blind spot in the practice of Taiwan’s court hearing system, and one that urgently needs to be fixed.
The cry: “I want to see a judge” should be more than just a slogan, and the court hearing system’s functions as a timely safeguard and remedy of personal freedom should be more than just words on paper.
It should therefore be crystal clear that the problem of detainees not being brought before a judge must be resolved, and that the duties that judges should perform when handling habeas corpus cases need to be clearly defined.
Liu Ching-yi is a professor at National Taiwan University’s College of Social Sciences.
Translated by Julian Clegg
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