A recent incident involving military police unlawfully searching a civilian residence has drawn the public’s attention. The media are focusing on the “illegal search,” which violates the freedom of residence. This article, on the other hand, will address the “illegal arrest” that the military police made when they brought the suspect, surnamed Wei (魏), in for investigation, as this involves personal freedom, a basic human right, espoused in the Constitution and the principle of constitutional reservation.
Personal freedom, also known as the inviolability of the person, refers to people’s right to move from one place to another and it cannot be infringed upon by the state. This right prevents the state from employing unlawful coercive practices, such as arrests and detention.
Personal freedom means that a member of the public is a “free person,” and this is the basis of all other freedoms and rights.
Article 8 of the Republic of China Constitution stipulates that, “Personal freedom shall be guaranteed to the people. Except in cases of flagrante delicto as provided by law, no person shall be arrested or detained otherwise than by a judicial or a police organ in accordance with procedures prescribed by the law. No person shall be tried or punished otherwise than by a court of law in accordance with procedures prescribed by the law. Any arrest, detention, trial, or punishment which is not in accordance with procedures prescribed by the law may be resisted.” As the Constitution clearly stipulates that unless a person is “caught in the act,” in which case the person may be legally arrested on the principle of statutory reservation, to arrest or detain anyone else must be done strictly in accordance with the principle of constitutional reservation.
In other words, the Constitution authorizes lawmakers to legislate procedures for arresting individuals caught in the act of committing a crime.
As for arresting and detaining anyone else, according to the Constitution, only “a judicial or a police organ” has the authority to do so.
What is “a judicial or a police organ?” Since this is a clear constitutional reservation on the part of the authors of the Constitution, the question is should a statutory reservation also be stipulated through the Code of Criminal Procedure (刑事訴訟法)?
The answer is a definite no. Here, the relationship between articles 8 and 23 of the Constitution must be considered. Not all freedoms are unrestricted.
As long as there is a legal basis for doing so, the state can, if necessary, restrict personal freedom to protect public interests, as delineated by Article 23 of the Constitution, which is the basis for restricting the freedoms stipulated in articles 7 to 22 of the Constitution.
The question is, can lawmakers invoke Article 23 to draft a law that imposes restrictions on personal freedom as stipulated in Article 8 of the Constitution?
Basically, Article 8 of the Constitution is different from other articles on fundamental rights and cannot be restricted by law, as the Constitution has prescribed the requirements for arrests and detentions.
The authors of the Constitution have specified in Article 8 that lawmakers cannot invoke Article 23 to place further restrictions on personal freedom.
The only thing lawmakers can do is to make the requirements stricter and make the procedures more stringent for the state to arrest and detain people.
They cannot relax the procedures or requirements stipulated in Article 8, nor can they make looser regulations than Article 8, or the protection of the public’s personal freedom would be weakened.
In Article 8, the authors of the Constitution reserved the right for the Constitution alone to determine the regulations on arrest, detention, trial and punishment, and lawmakers cannot draft laws to introduce further restrictions on personal freedom.
By contrast, articles 7 and 9 to 22 of the Constitution only specify the other fundamental rights granted to the public, without specifying any restrictions.
Therefore, legislators can invoke Article 23 of the Constitution to put restrictions on those fundamental rights.
Article 23 can be said to be a kind of a statutory reservation, as the authors of the Constitution reserved the decision to impose restrictions on those basic rights for the lawmakers.
Hence, when articles 229 to 231 of the Code of Criminal Procedure say that judicial police includes military police officers, the Code clearly violates Article 8 of the Constitution, which unambiguously stipulates that the enforcers are “a judicial or a police organ.”
Article 8 of the Constitution specifies the intent to safeguard the public’s personal freedom and only grants judicial or police organs the power to arrest and detain people; no other government agency have this authority.
Since articles 229 to 231 of the Code of the Criminal Procedure are out of touch with the Constitution, legislators should amend the law as soon as possible to ensure the protection of personal freedom.
Hsu Yue-dian is a professor of law at National Cheng Kung University and a visiting academic at the Humboldt University of Berlin.
Translated by Ethan Zhan
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