Following the recent anti-nuclear protests and congestion resulting from protesters blocking thoroughfares, the Ministry of the Interior has announced its intention to collect information on the organizers and repeat offenders to give to prosecutors, with a view to applying for court orders for “preventive detention.” However, it is debatable whether the law allows for people to be detained in this way.
Detention of suspects may only be employed when they are considered likely to abscond, or might destroy, forge or alter evidence, or conspire with a co-offender: It is not a pre-emptive measure to ensure that a crime is not committed and it is certainly not to be employed as a punitive measure. It is for use when certain habitual offenders need to be immediately detained to prevent them causing irreparable harm.
This is why, when the Code of Criminal Procedure (刑事訴訟法) was being amended in 1997, Article 101.1 was added to the code, listing the situations under which preventive detention is allowable.
According to this additional clause, prosecutors need only to believe a defendant’s offense is serious and be in possession of facts sufficient to demonstrate that they are likely to recommit the same type of crime, which must be specified in the clause, to apply for a court order to detain that suspect. These specific offenses include arson, sexual assault, larceny, fraud and threat to another’s personal security. In all, the article lists eight offenses.
Article 101.1 was added to ensure that preventive detention is not abused. If the nature of the suspected reoffending does not belong to the eight offenses listed in the article, according to due process of law, the suspect cannot be detained, regardless of what other offense they are suspected of being about to commit.
Therefore, if protesters staging an impromptu “passing by” protest or street demonstration do not resort to violence and limit their protest to a sit-in or a demonstration, they may be subject to an administrative fine for violating the Road Traffic Management and Penalty Act (道路交通安全處罰條例) or the Social Order Maintenance Act (社會秩序維護法), but it would be hard to argue that their actions constituted a criminal offense warranting preventive detention.
Whether they can be detained in this way also rests upon whether they are suspected of being about to recommit an identical type of crime. However, it has always been tricky to apply objective standards to predict whether somebody would reoffend, and this leaves the decision open to subjective or arbitrary ruling by a judge, in some cases depending on the identity of the suspect.
In addition, if the court does allow for preventive detention, this is tantamount to prejudgement of guilt, which is a serious violation of the principle of the presumption of innocence.
Ever since it was written into law, the idea of preventive detention has been controversial for being possibly unconstitutional. We must proceed with special caution concerning its use in this particular context.
If we are to deal with protesters guilty of infringing laws of a less serious nature in such a stringent manner and in an increasing number of instances, more people will end up being detained than is right.
Further, any detention can only be for a limited time and therefore only serves as a temporary preventive measure.
If the authorities cannot come up with a way to alleviate the grievances held by the public and the root causes behind these complaints, and can only threaten to lock people up, it could cause dissatisfaction to well up further, eventually coming to a head. If it keeps on raining, the levee’s gonna break.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Paul Cooper
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