A Bad Law is Not The Law
China Times editorial (Taipei, Taiwan, ROC)
February 23, 2009
Two years ago, one million people took to the streets to denounce corruption and demand that Ah-Bian step down. Prosecutors charged them with violating the Parade and Assembly Law. Yesterday the Taipei District Court Full Court pronounced Shih Ming-teh, Jane Tin-jie, Wei Qian Feng, Fan Ke-qin, Yao Li-ming, and 16 others not guilty. The legislature is considering amending the law. The court's ruling show how the Parade and Assembly Law has become an obstacle to the rule of law.
The court's not guilty ruling may have take some legal experts by surprise. They may even had take many of the defendants by surprise. One of the greatest challenges for the rule of law is the existence of a bad law. Is a bad law still the law? Or is a bad law not a law? In the West this philosophy of law dilemma has been debated for nearly a thousand years. Under such circumstances, judges must decide what constitutes a just ruling. In this case the Taipei District Court's three judges found the defendants not guilty. Their ruling implied that the Parade and Assembly Law was a bad law. But since the Legislative Yuan is amending the law, the trial court should not pre-empt it. Although the defendants asked the Grand Justices for a ruling on the constitutionality of the Parade and Assembly Law, the District Court did not stop its indictment proceedings. The judges adopted a conservative approach in dealing with their own constitutional review function. They dealt with the enforcement dilemma created by a bad law by presuming it was constitutional. They did not shirk their responsibility to be an impartial referee.
The Parade and Assembly Law is a bad law, not because some pundits have jumped to this conclusion, but ruling party succession leads to rival political parties taking turns making the identical accusations. Although this law purports to protect of freedom of assembly, it establishes all sorts of technical obstacles to freedome of assembly. In particular, it targets political rallies and marches. This case makes this unmistakably clear. The government agency in charge did not permit the Red Shirt Army to march because the Red Shirt Army had political motives, and was not merely participating in National Day celebrations. The agency's reasoning was inconsistent with due process. The way the Parade and Assembly Law is enforced makes it clear its intent was to limit political demonstrations. It doesn't matter if the demonstration is peaceful. Obviously a Parade and Assembly Law intended to suppress political expression conflicts with freedom of assembly and speech, core values guaranteed by the constitution. That is why the Parade and Assembly Law is a bad law that a nation under the rule of law cannot tolerate.
To peacefully assemble or march to express one's views about society or the government, is a legitimate activity that a democratic system must respect. Government should take the initiative to provide timely and appropriate venues for the public to peacefully exercise their right of public assembly. The more people assemble peacefully, the more obvious it is the system has political legitimacy. Millions of people taking to the streets may upset those in power. But those in power feeling upset is no reason to prohibit peaceful assembly. Over one million Red Shirt Army members repeatedly gathered on the streets of Taipei. Every time they concluded their activities peacefully. They were a model of mature large-scale political assembly. A handful of technical violations warrant, at best, a few fines. When the public protested against those in power, they weren't necessarily repudiating the lawful authority of the ruling administration. Once the ruling administration steps down, the Red Shirt Army's charges of corruption can be verified by means of the judicial process. Sure enough, their charges turned out to be neither groundless nor unfounded.
If corrupt rulers have yet to be convicted of corruption, yet the government suppresses peaceful protest, that proves the Parade and Assembly Law is a bad law that cannot be tolerated under constitutional government.
The courts once held that although the Parade and Assembly Law was a bad law, it was still the law. They imprisoned many people they shouldn't have. This time the court used its judgment. It applied the principle of proportionality. It refused to use a bad law to imprison political dissidents. It was a rare case of a double negative making a positive. If people understand how the protection of fundamental rights prevents the abuse of power and safeguards constitutional government. they will affirm the ruling. They will not challenge the court's decision. They will not cling to the outdated notion that a bad law is still the law. They will not prolong the political evil known as the Parade and Assembly Law.
The District Court ruling was well written. We look forward to the legislative branch reviewing and amending the Parade and Assembly Law as soon as possible. We would also remind public leaders that mass movements are unpredictable. Public leaders must exercise self-restraint, and help to maintain social order. Freedom of speech and social order are both rights protected by constitutional government. You can have your cake and eat it too. The court must stay the course, and have the guts to uphold justice. We hope the Legislative Yuan will follow the example set by the court when it acquitted the defendants. We hope it will swiftly pass an amendment, putting an end to the Parade and Assembly Law.