In the movie Schindler's List, there is a scene of German soldiers in Cracow rounding up and arresting Jews. The striking part is that the Jewish homes shown in the film all had false walls and hiding spaces, as though the owners had long anticipated the necessity for hiding from arrest. The movie dealt with the best and worst of human nature. Legal experts naturally aren't so silly as to ask the German Nazis why they didn't adhere to proper legal procedure. But why had the Jews prepared hiding spaces in their homes?
Many animals have a hiding instinct, and there are scholars who like to explain human social behavior in terms of animal instincts. However, the meaning of social behavior is ultimately much more complicated than just biological instinct. So in the end, what is the meaning of all the various forms of concealment that people practice? The most direct answer is -- authority.
Authority is manifested in the ability to lock people up. For this reason, after the last emperor of China, Pu Yi
Chang Hsueh-liang's
Don't under any circumstances take people's right to "lock" themselves up lightly! In the days of authoritarianism, not only political dissidents were not the only ones who could very easily be arrested and imprisoned. We poor young people were even more at risk of arbitrary searches and monitoring by teachers and military instructors. From searching our bookbags and drawers to inspecting our letters and dorms, when did our educators ever show any respect for the privacy of young students? No wonder they produced a crowd of intellectuals who can pass tests but don't know how to respect human rights -- even if they received a so-called complete legal education and became judicial officials. What does locking oneself up mean to these authorities? Isn't it enough to just pry the lock open?
The legal scholar Ronald Dworkin often emphasized "equal concern and respect." But a major flaw in Chinese culture is an excess of concern and a lack of respect. The prying and inspecting by parents and teachers is all undertaken in the name of loving concern. The searches and inspections by police and court prosecutors are performed for the sake of maintaining the social order. I even had the experience of arriving early in the morning at my office and being astonished to find someone already seated there using my computer. The reason -- overhauling the computer network.
These actions all seem to have "legitimate" reasons. However, we too easily let respect get thrown to the wind by these legitimate reasons. Thus we may no longer feel the dread that we could be locked up at any time, but we always have the worry that we could be "arbitrarily exposed" at any moment.
What does a life that can be "arbitrarily exposed" mean? The most important, apart from the discomfort, is that one is treated like a material object. Because when others can arbitrarily expose or peep into your space, body, assets and information, the kind of mutual respect that exist between "me and you" disappears. "You" becomes a mere pile of objects, information or statistics to be searched.
Perhaps, in the still highly patriarchal spirit of Eastern cultures, it is difficult to fully grasp this point. That is why a "Big Brother" type politician like Lee Kuan Yew
The recent raid on the China Times Express garnered widespread attention because it involved a major media group. Arguments on the issue often focus on press freedom and suggestions that the prosecutors' power to take "compulsory measures"
But didn't the recent raid on the Legislative Yuan's property by prosecutors also generated strong media comments saying the legislature should not be a haven from law? Didn't speculation of a "political conspiracy" far outweigh human rights discussions when a judge personally led a raid on the residence of a politician?
When the media was reporting on the Hsihchih trio case, how many journalists actually emphasized the serious defects in the evidence-collection process? When reporters pursue different crime stories every day, how many of them actually notice that the police are trampling on other people's privacy when they "expose" hotel rooms, wallets, disco pubs and even human bodies to the wanton probe of cameras?
Therefore, I support using the China Times Express incident as an opportunity to shrink the prosecutors' "compulsory measure" powers.
I would also like to remind people of the following points: First, Taiwan's legal system is fraught with legal provisions authorizing intrusions into private life -- the Law for the Protection of Computer-managed Personal Information (電腦處理個人資料保護法), the Police Duties Act (警察勤務條例) which authorizes surprise searches, and the Household Registration Law (戶籍法) which allows compulsory fingerprinting). But we seldom question whether these provisions are constitutional.
Second, people authorized by law -- such as judges and prosecutors -- are not above the law in making judgments. Even if all the powers -- from detentions to raids to phone-tapping to DNA sampling -- are transferred to the courts, the legal community still needs to gradually establish more accurate standards by drawing on past precedents and by interpreting the constitutionality of legal provisions.
Third, not only the state machine conducting criminal investigations intrude into people's lives, but employers, doctors, social workers, religious workers are all faced with various questions on the "limits" of intrusion. Taiwan has seen all kinds of legal dispute in this regard. To cultivate a prevalent sense of respect among our citizens is a matter of great urgency.
Finally, only by this kind of extensive debate can we prevent the reforms from merely protecting big clients such as media groups and the legislature. Instead, we will be able to truly protect people's private lives, including all the areas ignored by mainstream social values.
Strangely enough, at a time when public awareness of the right to privacy is growing, we are faced with the possibility of widespread intrusion into our private lives. Given that one may get a surprise check by merely spending a night at a small hotel, who can help but lament the fact that there is no place left under the sun to take refuge in? It boils down to a key decision -- do we choose Lee Kuan Yew's orderliness or Lee Teng-hui's freedom and ease? How to balance between law and "the emptiness of law" is a problem for everyone seeking freedom to ponder.
Yen Chueh-an is an associate professor of law at National Taiwan University.
Translated by Ethan Harkness and Francis Huang
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