In a stunning turn of events in a 23-month-long court battle, a judge has decided to suspend the hearing and ask for a constitutional interpretation on whether illegal restrictions have been placed on the public’s right to assembly and on freedom of speech.
Taipei District Court Judge Chen Ssu-fan (陳思帆), presiding over a case where a university professor was arrested for holding a sit-in without a permit, said on Thursday night that the controversial Assembly and Parade Act (集會遊行法) would be passed on to the Council of Grand Justices to determine the constitutionality of several of its clauses.
The judge said in the meantime he did not have enough information to make a ruling in the case against National Taiwan University assistant professor Lee Ming-tsung (李明璁), a leader of the Wild Strawberries student movement in 2008.
On Nov. 6, 2008, the sociology professor led dozens of university students as they held a two-day sit-in at Liberty Square in Taipei to protest a police crackdown on the display of the Republic of China (ROC) national flag and the playing of Taiwanese songs during a visit by Chinese envoy Chen Yunlin (陳雲林) earlier that week.
Along with a number of student leaders, Lee was forcibly evicted and arrested the next day after police said he did not hold a valid permit and accused him of refusing to disperse the crowd despite repeated warnings by officers. Prosecutors said Lee had not applied to hold the protest with Taipei police, in contravention of the act.
Restrictions placed on protesters by the Assembly and Parade Act are far-reaching and numerous.
Article 4 and Article 6 of the act state that protesters cannot speak in support of communist or pro-Taiwanese independence activities and that protests cannot take place near certain government buildings, airports, military installations and embassies.
The act also states that permits for protests must be applied for in writing with local police departments beforehand and that protests can be canceled or moved by the government because of adverse weather conditions or other “serious events” — without further elaboration.
On Thursday, Chen Ssu-fan said he was concerned that the articles in question could be in violation of Article 14 of the Constitution, which protects freedom of assembly and association. He added that the restrictions could also violate the principles of two international conventions on human rights protection that were promulgated last year.
Leaving the courtroom following the judge’s decision, Lee told reporters the move was a “major step forward in Taiwan’s democratic development.”
He added he was even happier with the judge’s stance than he would have been if acquitted.
“The judge has taken this case up from an individual issue to a constitutional issue ... this will have long-term positive implications for the protection of human rights,” the 39-year-old professor said.
“I honestly think the judge has a lot of guts and his decision shows long-term vision,” Lee said.
Lin Feng-jeng (林峰正), an attorney and executive director at the Judicial Reform Foundation, which provided Lee with his legal team, also applauded the decision, saying he was optimistic the Grand Justices would find in favor of abolishing the act.
“Frankly, having the judge stop the case and actively ask for a constitutional interpretation was the most surprising thing that could have happened during this case,” he told the Taipei Times.
Civil organizations scrutinizing the case said they believe revisions to the act are long overdue and they agreed the decision would have long-term implications for Taiwan’s democracy.
“We have had concerns for a while now that the act is falling behind and can no longer protect the public’s constitutional rights and I think the judge’s decision reflects this,” Taiwan Association for Human Rights secretary-general Tsai Chi-hsun (蔡季勳) said.
The act, first passed in 1988 — a year after the end of martial law, has long been a cause of controversy for activists and politicians, who argue that it seeks to excessively regulate protesters and handicaps more spontaneous protests, compared with laws in the US and Europe.
The latest revisions, in 2002, relaxed some of the restrictions, but requests for an overhaul of the entire act have so far failed to reach a legislative consensus.
Democratic Progressive Party (DPP) lawmakers yesterday said they would once again request that the Executive Yuan begin efforts to abolish the act, calling it an important indicator of whether the country was “truly democratic” — saying that such efforts should supersede party politics.
DPP Legislator Wong Chin-chu (翁金珠) commended Chen Ssu-fan for his handling of the case, which she said was an “historical issue” that would play an important part in Taiwan’s judicial reform.
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