On the heels of International Human Rights Day, the Council of Grand Justices handed down Interpretation 535 of the Consti-tution, a ruling which may express human rights guarantees. Though justice is late in coming, its arrival is nonetheless worthy of celebration. However, the interpretation is not entirely clear.
Legally speaking, any laws by which the government limits people's rights, or increases their obligations, must be enacted through legislation. While the Police Duties Regulations (警察勤務條例) is a special law, its legislative basis is the Police Law (警察 法), which contains no articles authorizing police to conduct warrantless searches and seizures. The 29 articles in the Police Duties Regulations are basically just administrative regulations.
When organizational rules are used as the basis for the external exercise of police power, the officers' authority to act and the legal force of their action are clearly in doubt. It creates problems and easily gives rise to acts that intrude on the rights of those being searched.
Interpretation 535 should have clearly declared those articles of the Police Duties Regulations regarding warrantless searches and seizures unconstitutional. Legislation governing such actions should be enacted in law, in order to give them a legal basis.
The grand justices wrote that "... the execution of warrantless police searches, constitutes search of and interference with persons and their belongings, greatly affecting the people's right to freedom of movement, property and privacy." Nevertheless, it is questionable the way the interpretation tolerates existing abuses of power by calling for "a total review and amendment [of the law] in accordance with this interpretation within two years of the official release of the interpretation."
Police have conducted warrantless search and seizures for years. Spot questioning and searches -- even indulging in ridicule, threats and displays of bad attitude -- have led to public distain for the police. To date, not a single officer has been tried and found guilty of such acts.
But it is not just the police. Although the justices' interpretation is a start, no law can enforce itself. Any attempt to redress the corrupt practice in warrantless search and seizure should at least stress the following:
One, regulations on warrantless police searches and seizures should be quickly enacted and detail the requirements needed for permission to be given for such actions. An administrative procedure for warrantless searches and seizures should be implemented that would require the police to present their IDs, give the reason for such action, tell suspects their rights and maintain decorum during searches. Written notices should also be given to those who are unhappy with a search action, which clearly state the administrative remedies and legal channels available.
Two, regulations should also be enacted regulate media access to raids and seizures. Police officers often invite reporters and photographers to observe search actions as a way of building up their personal reputations. But reporters have been known to forget that they are supposed to be neutral observers and, as a result, they trample on human rights. There have been far too many occasions when reporters or camerapeople have gotten into verbal disputes with the targets of a raid, putting additional pressure on those who refuse to comply with searches. In order to establish a neutral role for journalists, the Journalist Law (新聞記者法), which was frozen in 1945, should be updated and re-enacted.
Judges and prosecutors should also not gloss over abuses by police. Impartiality is the pillar on which a society ruled by law ultimately rests.
The public's ignorance of the law is a key factors contributing to the abuse of police powers. Taiwan's educational system -- even at the university level -- provides almost no instruction on the law and civil rights. Such classes were once compulsory for university students, but the Ministry of Education eliminated the requirement, and, as a result, many students display a shocking level of ignorance and indifference towards the law.
Conducting warrantless searches and seizures is the most challenging of all police duties. Unless such actions are handled skillfully, they can lead to conflicts with the public and waste societal resources. Current police procedures are in need of urgent review.
Legalizing the procedures for warrantless searches and seizures would provide the public with human rights guarantees. It is also the only effective means to preserve police authority.
Hsu Chen-yuan is a professor at the Institute of Public Adminis-tration and Policy of Nan Hua University.
Translated by Scudder Smith
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