A Bad Law is Not The Law

A Bad Law is Not The Law
China Times editorial (Taipei, Taiwan, ROC)
A Translation
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.

中時電子報
中國時報 　2009.02.23
社論－肯定一樁彰顯惡法非法的判決
本報訊

兩年前百萬紅衫軍群眾上街反貪倒扁遊行，遭到檢方以違反集遊法的罪名起訴，日昨台北地方法院合議庭宣判，施明德、簡錫?、魏千峰、范可欽、姚立明等十六人均無罪。正待立法院研議修法的集遊法，因為此項法院裁判，正好彰顯其已成為法治進步的絆腳石。

法院這項無罪判決，或許令一些法界人士感到意外，甚至超出諸多當事者的料想。此中對法治最大的挑戰，就是司法面對一部惡法，究竟該是以惡法亦法，還是惡法非法？這是在西方辯論達千年的法律哲學問題，必須要在法院法官決定什麼是「正義」的裁判過程中做取捨。本案由台北地院三位法官組成的合議庭做成的無罪判決，在判決當中含蓄地表達了集遊法可能是一部惡法，但應由立法院儘速從事修法審議，不應由個案審判的法院越俎代庖的意思。雖然本案中被告曾聲請大法官解釋集遊法違反憲法，地方法院並未停止訴訟程序；法官以保守而審慎的態度面對自身違憲審查功能，優先使用合憲解釋的方法處理惡法帶來的執法難題，但也不致違背司法交付正義裁判的責任。

集遊法是一部惡法，絕不只是來自輿論的輕率評價，而是政黨輪替的過程中，輪流下野的政黨異口同聲的指責。此法雖號稱是以保障集會遊行自由為其宗旨，卻設下種種技術障礙壓抑集會遊行活動，尤其以政治群眾集會遊行做為主要防範箝制的對象。此點在本案中展露無遺。法院認為主管機關以紅衫群眾活動具有政治意圖，與單純參與國慶活動有別，所以不許遊行。此一裁決不僅不符正當程序，也證實了現行集遊法下的執法行為，正是在限制政治意圖的遊行活動。一部不問手段是否和平，概以抑制政治意圖為能事的集遊法，當然牴觸了憲法保障集會遊行與言論自由的核心價值；說它是法治國家不容許存在的惡法，道理正在於此。

和平從事集會遊行，向政府或社會表達公民意見，是民主政治中必須受到尊重的正當活動。政府應主動提供適時且適當的場地促使集會遊行權利的和平行使。參加和平集會遊行的人數愈多，民主正當性愈益明顯；百萬人上街雖然必定使得執政者感到震懾，但是執政者的震懾，不是不許和平集會遊行的理由。紅衫群眾數以十萬、百萬計的人口幾度出現在台北街頭，每次又均能以和平的方式收場，其實堪稱大規模政治性集會遊行的成熟範例。若干技術性的違規舉動，充其量只該是施以行政罰而施以刑罰的理由。當年群眾對於執政者貪腐的抗議，未必非法否定執政者的合法統治；直到執政者下台之後，才有機會逐漸在司法的程序中驗證紅衫遊行控訴貪腐，既非空穴來風，也非杞人憂天。

現在如果貪腐的執政者尚未定罪，卻要用刑罰率先制裁和平遊行的抗議者，就足以證明集遊法確是一部絕不能見容於民主憲政的惡法了。

集遊惡法過去在法院的案例之中，受到惡法亦法的觀念作崇，曾使許多不該坐牢的人們坐牢，這次法院以清明的智慧，妥善運用比例原則，拒絕使用惡法繩之不該下獄的政治異議人士，是司法一次難得的擾亂反正。人們如果對於撐持民主憲政、保障基本權利、防止權力濫用的信念有所認識，就該給予極大的肯定，而不是帶著惡法亦惡的思想餘緒，質疑法院的判決，加深集遊惡法的政治罪孽。

地方法院的判決書寫得好，一面期待立法部門盡速審查集遊法的修正草案，一面提醒發起群眾集會遊行的社會意見領袖，瞭解群眾活動的不可預測性，應充分自制，配合維持社會秩序和平。言論自由與社會和平，是民主憲政保障集會遊行權利，可以兼得的魚與熊掌，集遊法見不及此，法院則持平穩重，發揮了司法正義應有的道德勇氣。希望立法院能在無罪判決聲中，見賢思齊，加速修法，結束集遊惡法肆虐的時代。