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Article 21 The rights to assembly and parade

Assembly and Parade Act

  1. Taiwan’s government has precisely indicated in “The Initial State Report (2012)” that the Assembly and Parade Act violated Article 21 of ICCPR. Including a series of rules and regulations such as the permit system, the power for the police to disperse criminal punishments, the time limit of application consecutive punishment, and fines.68 These regulations should all be reviewed and revised. All the levels of government should adopt practical measures to implement the protection of Covenant rights;69 both the “Response to the Two Covenants: The Initial State Report Concluding Observations” and “The Second periodic state reports” have the same response toward the lack of implementation on the rights of assembly and parade.70

  2. In the concluding observation, the international experts especially suggested that “suppressive legislation ought to be removed, even though the practice may have changed”,” the Legislative Yuan without further delay adopt the required amendments to the Assembly and Parade Act so that it is brought into conformity with Article 21 ICCPR” “civil society have to invoke the jurisdiction of the Judicial Yuan to challenge the legitimacy of the offensive provisions of the Act.”71 However, from the first ICCPR review in 2012 until now, even though there are many related proposals of draft revision, the Assembly and Parade Act has not been revised. The government has not actively promoted or effectively entered this Act into proceedings in order to actually be reviewed. After the Parliament and President election on 16 January 2016, whether the situation improves remains to be seen.

  3. Although the government claims that a response has been actually made regarding requirements from the Covenant and the Judicial Interpretation No. 718 by the Judicial Yuan（the request to exclude the accidental and emergency assemblies from the permit）in 2014, there have been gradual modification regarding assembly and parade. In practice, the government has oftentimes applied other laws, such as the Criminal Code and Social Order Maintenance Act, other than the Assembly and Parade Law to address citizens’ assemblies and parades without taking into consideration the nature and scope of the fundamental right in question.72 Therefore no matter an assembly, parade, or various on-site acts are general, accidental or emergency in nature, the people who participate this assembly are still being suppressed, dismissed and punished due to the adaption by other laws. This violates requirements from the Covenant and judicial interpretation.

  4. Even though the government claims that a proposal has been made for revision of the law, the government’s proposal for revision of the Assembly and Parade Act still has suppressive content that against the Covenant and the concluding observation. For example, almost all assemblies and parades have to be filed in advance. If not, there will be punishments, such as being dispersal and fines.73 This violates the idea that the Covenant guarantees all “peaceful” assemblies and parades, which will not be suppressed because of not filing. In addition, the filing procedure request protester to present a written agreement from the manager or owner of the venue. Incomplete filing will be seen as unfiled and there is no regulations regarding the consent of venue, which means the state actually still has the ultimate approval power toward assembly and parade.74 This violates the positive obligation of the state to provide the venue for assembly and parade, especially when it is unable to mediate the conflict among different groups that apply for the same public space at the same time.

  5. If the government is able to provide effective remedy and accountability, this will be a crucial part to protect the freedom of assembly and parade. However, presently the police tend to refuse presenting their identification while carrying out a task and the suppression to the journalists or the on-site recorders causes the lack of accountability. When the tension turning high during the protest, the police tend to react with violence toward the protesters and journalists. Suggest: The means of law enforcement by the police should take into account the principle of proportionality, punishments should only put on those who cause obvious and immediate danger the identification of law enforcement personnel should be clear.

The foreigners’ right to assembly and parade

  1. In response to Paragraph 297 of the ICCPR State Report, the police should follow proportionality when dismiss assembly and parade. However, during the period when the laid-off Hydis factory workers came to Taiwan to plead and protest, they expressed their appeal via a peaceful sit-in. The Taipei City Zhongzheng Precinct Police to circle and arrest factory workers.

  2. In response to article the Judicual Interpretation No. 718 announced the Assembly and Parade Act partially violates the Constitution, and the Act should ensure a emergency assemblies, for both citizens and foreigners have the freedom to peacefully assemble and parade. Taipei Police Department No. 1043224920075 “does not approve” laid-off Hydis factory workers to hold emergency assembly activities due to the fact that they don't have “the document to prove that the owner or manager of the revenue has agreed on its usage for assembly. However, the venue of the assembly was outside of the house of the workers’ employer . It is impossible to obtain approval for the space outside, since the road does not belong to any particular person. The violation of foreigners’ right to assembly and parade in Taiwan has exceeded the power of the police, and violated the meaning of the aforementioned Judicual Interpretation No. 718.

The abuse of offenses on obstructing an officer in discharge of duties, the case of Hua Guang Community

  1. On 24 April, 2013, the Court enforced the demolition of Huaguang Community by force. Supporters and community residents held a concert right on the spot on April 23, but in the evening on that day, the police came in advance and blocked the designated area, and separated residents, store owners in that area and supporters from one another. During the evening event, one of the residents was not willing to accept the road blockage performed by the police. This resident took a detour to go home, which resulted in a dispute with the police. Because the police ignored this resident’s appeal for passing through, the residents and students got excited emotionally and attempted to pass through the road blockage, resulting in conflict. During the conflict, the police arrested several supporters. And, in the dawn on 24 April, the demolition equipment from law enforcement had been moved into the community in advance, once again causing another conflict between the police and supporters. The police arrested those supporters again. During the Huaguang Community Enforcement on April 23 and 24, a total of 15 people were placed under arrest. On 15 June, 2016, 5 of them were sentenced to 50 days of detention due to obstruction of public duties.

  2. Improper space control：in the practice of assembly and parade in Taiwan, in addition to Article 6 of the “Assembly and Parade Act” being the typical and distinct pattern of space control, in order to prevent civilians from expressing opinions to “representative” government agencies, the police also based on Articles 6 and 27 of “Police Power Exercise Act” that “the police may verify the identity of the following people in public places or public-accessible places,” “people who pass through designated public places, road sections, and check points,” and “to prevent danger or harm, the police may temporarily repel or prohibit access of people or vehicles that pose obstruction while exercising their powers,” to adapt Articles 1 and 2 of the “Assembly and Parade Act” to fit other legal regulations76, and to establish a controlled area to eliminate civilian assembly and parade, such as in the case of the relocation enforcement of Huaguang Community. The police, based on the Court’s civil execution order, expanded the police force and road blockage area at their own will, and restricted people’s right to assemble and parade here through the “identity check.” However, Article 27 of the “Police Power Exercise Act” is in the chapter of “Immediate Enforcement,” and the purpose is for the police to instantly control a particular area to prevent danger. In this case, the police blocked the road a day ahead. In other words, this was a planned execution of official duties not related to any serious danger. It obviously does not match the immediacy of immediate enforcement. Moreover, when the police ponders on the administration, they will not evaluate whether or not this conforms with the principle of proportionality, such as in the case of land grabbing incident of Da Pu. The crowd raised strips of cloth far away from the road where the presidential vehicle would pass by, but the police arrested them by force, and constantly controlled the space at will, evidently violating the Article 21 of ICCPR” to ensure the civilians’ rights to assembly and parade.

  3. The Abuse of Offenses of Obstruction an Officer in Discharge of Duties: “Assembly and Parade Act” went through explanation by Justices of the Constitutional Court’s Interpretation No. 445. After the Justices of the Constitutional Court’s Interpretation No. 718 announced its partial violation on the Constitution, the police in recent years have switched to the chapter of Offenses of Obstruction an Officer in Discharge of Duties within the Criminal Law to punish protesters, especially utilizing Article 135 of the current “Criminal Law” as a general measure. This law emphasizes that when civil servants perform duties according to the law, if someone acts with “force, threat,” this may constitute offenses of public duties. In comparison, strict criminal punishment allows police to more easily clamp down on civilian assembly and parades, creating a chilling effect. In the case of Hua Guang Community Eviction, the police transferred 5 defendants according to the Offenses of Obstruction an Officer in Discharge of Duties, even though the legality of their duties was highly questionable. In this instance, the police expanded the execution of official duties at their own will for the purpose of implementing a government’s administrative act. In addition, the protest of the 5 defendants actually did not affect or prevent official duties from being performed. They were put into jail because of resisting the unequal power of state machinery. The police further abused their power upon affirming “force, threat,” and in the other case of Huaguang Community. Supporters of Huaguang accidentally dragged the police shield during the pushing that occurred. On facing the advantage of official police duties, they were sentenced to 3 months in jail according to the Offense of Obstructing an Officer in Discharge of Duties. The law enforcement system and the Court obviously violated the meaning of protection for peaceful assembly and parade on ICCPR.”

  4. Regarding the statistic and trend of offense of obstructing an officer in discharge of duties, through challenge the improper Assemble and Parade Act for many years, law enforcement agencies used to investigate and prosecute appealing and protesting events based on the “Assemble and Parade Act.” In the past, and the Court tended to loosely accept statements from law enforcement agencies. However, according to Taipei District Court Summary Appeal Judicial Decision No. 115 in 2002, the opinion of the Court switched to “whether or not the distance between boards raised was proper” for the very first time; and in 2006, Taipei District Court Regular Judicial Decision No. 709 in 2005 addressed the issue regarding the effect of the white board raising, talking about the actual review of the principle of proportionality.77 Upon accepting questioning about the improper execution of the “Assemble and Parade Act” from every level of the Court, law enforcement agencies in recent years gradually switched to prosecuting protesters according to articles related to chapters of Offense of Obstructing an Officer in Discharge of Duties in the “Criminal Law,” Based on the case integration by Taiwan Association for Human Rights,78 there were a total of 35 first instance Judicial decisions related to appealing and protesting cases. Among the 18 prosecutions involved with Offense of Obstructing an Officer in Discharge of Duties on the “Criminal Law,” 15 of them were convicted guilty, and only 3 of them were convicted innocent; in additions, 7 prosecutions involved with the “Assemble and Parade Act,” and 4 of them were convicted innocent.

Lack of effective mechanism to inquire about the responsibilities of the State and national organizations related to assembly

  1. According to Paragraph 90 of “Guidelines for the treaty-specific document to be submitted by States parties under article 40 of the International Covenant on Civil and Political Rights”, the government should provide “any registered statistic related to violence against peaceful members of assembly or prosecutions against unarmed members attending assembly. Have these prosecutions been investigated, how would the result of investigations be? ” However, the State Report didn't provide any information never mentioned this. The State bears an obligation to provide to those whose rights have been violated in the context of an assembly an adequate, effective and prompt remedy determined by a competent authority having the power to enforce remedies.(refer to Paragraph No. 89 on A/HRC/31/66).

  2. Everyone has the right to observe and monitor assemblies. This right was originated from Article 19 (2) of ICCPR”, and is applicable to related information in order to deal with human rights issues (refer to Paragraphs No. 66-71 on A/HRC/31/66). However, the police in Taiwan often hinder and even arrest people monitoring the assembly, including journalists, and also hinder the inquiry of accountability regarding human rights issues related to the assembly. For example, on March 23 and 24, 2014, the Executive Yuan performed armed suppression actions. According to media footage, during this action, the police assigned armed policemen to expel journalists before expelling protesters.79 Moreover, according to the announcement by Indiemedia, before the armed expel in the dawn on April 28, 2014, the police once again expelled journalists with force.80 On July 28, 2015, 3 journalists were arrested on the protest site at Ministry of Education because of “invasion of residence.”81 On November 7, 2015, once again 2 journalists were arrested on the protest site.82 The police often argue that they are unable to distinguish between protesters and journalists, yet in the aforementioned incidents, journalists all have proved their identities with journalist ID, but they were still under arrested, so the police hindered the monitoring of assembly on purpose, in order to avoid inquiry of accountability on human rights after wards.

  3. In order to ensure the policemen are responsible for illegal actions or dereliction of duty, it is necessary to properly archive the decisions made by commanders from each level. All law enforcement personnel must be identified precisely (refer to Paragraph 65, A/HRC/31/66, Paragraph 79, A/HRC/20/27). Article 4 of “Police Power Exercise Act” rules that when the police execute their duties, they may wear uniform or present ID to prove their identity, but many policemen do not have the police number or name on their uniform. Such equipment as criminal police vests, hats, riot control equipment or rain gear can obscure police numbers.83 There are also policemen wearing plain clothes when performing assembly duties.84 These measures result make it impossible to identify police identity in the observation and monitoring footage shot on the assembly site, seriously hindering inquiry into police accountability afterwards.

  4. Taiwan’s government uses administrative rules and regulations, rather than the law, to widely restrict civilians’ freedom of assembly. These increase restrictions are not included in the law. For example, “Taipei City Police Department Code of Practice on Executing Assembly, Parade and Media Coordination” has planned a press zone during the assembly, and stated that they will expel media outside of this zone.85 “Principles of Accidental and Emergency Assembly and Parade” requires that emergency assemblies and parades be approved. “Police Agency Operating Procedures on Handling Mass Activities” is even deemed confidential and not open to the public. On facing the inquiry of accountability, these self-established administrative rules and regulations easily become the foundation for illegal actions, making it easy for policemen on site easy to escape responsibility.

  5. The government should perform non-judicial monitoring on more levels, including effective internal investigation procedures and independent supervision agencies (refer to Paragraph 94, A/HRC/31/66). However, the supervision mechanism in Taiwan’s police agencies is too lazy to perform investigations and accountability. During the armed suppression in the Executive Yuan on March 23 and 24, 2014, there were tens to hundreds of civilians injured. Policemen were seen on footage clearly beating civilians. The National Police Agency first stated that they were unable to identify those policemen, and then indicated that no policemen or police officers were responsible. During the investigation by the Control Yuan, the police refused to provide related footages for evidence86. During the anti-nuclear assembly on April 28, 2014, the police attacked the a crowd in a peaceful sit-in with water cannons. Footages circulated on the internet showed that the crowd was being shot by water cannon from the angle of the police, including women whose clothes were being washed out by water cannons so they became half naked.87 During a protest on July 23, 2015, some media also published photos provided by the police of minors being arrested on the closed site where only protesters and policemen were present.88 According to Article 9 of the “Police Power Exercise Act”, the police should use evidence collected on-site, such as footage, solely for judicial litigation. These actions have obviously invaded the privacy of the protesters. However, the police indicated that they were unable to find those who performed such actions, and they also denied any improper action.

  6. Prosecutors should carry out their functions impartially and without discrimination, and should give due attention to prosecuting crimes committed by public officials. (refer to Paragraph 93, A/HRC/31/66). However, Taiwan’s Prosecutors Office has not properly performed their investigation duties toward assembly related cases. On one hand, they threatened civilians who have asked for the inquiry of accountability with police violence. After the armed suppression action on March 23 and 24, 2014, the prosecutors have not performed any investigations of police violence. On the contrary, injured civilians and their witnesses who have prosecuted and provided legal documents voluntarily and privately came under prosecutor investigations on accusations of committing offences such as Offenses of Obstruction an Officer in Discharge of Duties89. This will cause serious a chilling effect and discourage civilians from following the judicial route to inquire for accountability on illegal actions done by the police during the assembly.

  7. The Justice system refused to review private prosecutions related to the assembly by civilians based on technical procedures. After the armed suppression action on March 23 and 24, 2014, tens of injured civilians made private prosecutions to the Court. The Court only accepted the case of the first person who made the prosecution and turned down all other cases, on the grounds that all cases are actually the same case.90 However, the Court did not integrate other private prosecutions into the first person’s, so civilians were unable to seek accountability from the police through judicial procedures.

  1. 《International Covenant on Civil and Political Rights The Initial State Report》, ¶267
  2. 《International Covenant on Civil and Political Rights The Initial State Report》, ¶¶269-270
  3. 《Response to the Two covenants The Initial State Report Concluding Observations and Recommendations 》, Articles 259-260；《International Covenant on Civil and Political Rights The periodic state reports》, Articles 297-299
  4. 《Review of the Initial Reports of the Government of Taiwan on the Implementation of the International Human Rights Covenants Concluding Observations and Recommendations Adopted by the International Group of Independent Experts》, ¶75
  5. For example, articles 42、64、67、68、71、72、73、74、85、86、90、91 of the Law for Maintaining Social order, articles 135、136、140、149、152、153、160、246、306 of the Criminal Law, articles 6、27、28 of the Police Power Exercise Act, article 36 of the Administrative Enforcement Act, Article 8 of the Principles of Accidental and Emergency Assembly and Parade
  6. Articles 24、25 of 1050219Assembly and Parade Act Draft Amendment, the Executive Yuan edition
  7. Article 9 of 1050219 Assembly and Parade Act Draft Amendment, the Executive Yuan edition
  8. Taipei City Police Department Official Letter No. 10432249200
  9. On the parts disagreed by Justice Cheng-Shan Lee in the Judicial Yuan Grand Justice Interpretation No. 718 mentioned that ”Article 6 (1.6) of Police Power Exercise Act rules that: “the police may verify the identity of the following people in public places or public-accessible places：……6. people who pass through designated public places, road sections, and check points.” Item 2 on the same Article rules that：”The designation stipulated in the sub-paragraph 6 of the preceding Paragraph shall be made only when considered necessary to prevent crimes or deal with events that may affect major public safety or social order. /the designation shall be determined by supervisors in charge. ”Also adapted from regulations on Article 1 (2) of the Assembly and Parade Act：”The matters with no applicable provisions in this Act shall be governed by other relevant laws. ”The police is able to expand controlled space outside of the “ prohibited zone” in the name of “identity check, ”strangling the lifeline of freedom of assembly.”
  10. Refer to Assembly is irrational? Parade is guilty! By Jen-Hao Liu – the shaping of history and law enforcement of assembly and parade control, p. 160.
  11. Use the judgments query system of Judicial Yuan, choose “criminal” in Category of Judgment, set up the Date of Judgment as “from January 1 to December 31, 2014,”in Full Text Search enter the phrase “assembly + parade + protest + appeal, ”the results and opinions of judgment on appealing and protesting cases related to the first instance from every district court in Taiwan.
  12. Taiwan Democracy, 2014, “Executive Yuan expel: All media have been pushed outside, freedom of the press is dead: press driven out by police”, March 23, 2014.
  13. Indiemedia, May 1, 2014, Indiemedia’s announcement of “428 Chung-shiao West Road pedestrian bridge incident”.
  14. United Daily News (UDN), July 28, 2015, Important News, Petition to protest the curriculum guidelines, Taipei City Police Department：3 journalists illegally entered Ministry of Education.
  15. Liberty Times, November 9, 2015, Politics, Citizen reporter under arrest accused of being illegally restricted due to live broadcasting of protest at Taipei Songshan Airport.
  16. On Taipei District Court 2014 Summary No. 107 Judgment, the police could not perform particular tasks due to the barricade of riot control equipment.
  17. Newtalk, the police shouted out “peace and rational” while dragging protesting cashiers.
  18. Liberty Times, December 31, 2014, Society, Taipei City protest site will establish ”press zone,” reporters criticized this to be invasion of freedom of the press.
  19. Liberty Times, June 5, 2014, Politics, Executive Yuan expel incident, the police refused to provide footages to the supervisors, and the supervisors talked smack and said: What are you afraid of?
  20. Stormmedia, 428expel sexual harassment, the police intentionally used water cannons to wash out female student’s pants.
  21. Liberty Times, October 1, 2015, Society, 723 Occupying the head of Ministry of Education’s office, anti-curriculum students questioned the police leaking photos.
  22. Liberty Times, December 5, 2014, Politics, The truth of 324 not yet clear, THE NGOs appealing the academic circle not to hire Yi-Hua Chiang.
  23. China Times, May 6, 2015, Society, 323 occupying the Executive Yuan, 39 more people being prosecuted.