Regulating the Freedom of Assembly and Demonstration: History and Legal Practice

• Main Authors: Jen-Hao Liu, 劉人豪
• Other Authors: 陳昭如
• Format: Others
• Language: zh-TW
• Published: 2012
• Online Access: http://ndltd.ncl.edu.tw/handle/72687265798480770549

碩士 === 國立臺灣大學 === 法律學研究所 === 100 === “Assembly and Parade Act” has already been criticized by scholars of law and some groups of social movements for a long time. Many regulations, including the ones regarding the request for permission of assembly and the penalties for those people who violate the regulations, are widely thought as improper rules because they seriously restrict people’s freedom of assembly. Researches on the legal interpretations of “Assembly and Parade Act” nowadays are relatively abundant, but few people are able to clearly interpret the legislation and the alteration of “Assembly and Parade Act”. From the perspective of history, I am going to answer the two following questions: “How ‘Assembly and Parade Act’ made” and “Why ‘Assembly and Parade Act’ could keep its restrictive spirit for a long time.” By finding out the results of these two questions that were seldom discussed, I was able to conclude a clearly historical context of “Assembly and Parade Act”. Moreover, I also noticed that past studies on “Assembly and Parade Act” heavily focused on the legal interpretations and that there were few analysis on the legal practices of “Assembly and Parade Act” for further studies. I, also found that “How judges view assemblies and parades” and “How judges apply ‘Assembly and Parade Act’ in reality” are also issues that are worth studying. After collecting many judgements of “Assembly and Parade Act” and analyzing their contents, I am going to discuss the evolution of judges’ legal opinions from the perspective of history in this thesis. According to my historical research, I found out that many regulations similar to today’s “Assembly and Parade Act” were seen in early administrative rules enacted by “Taiwan Garrison Command” or other governmental organizations during “The period of Martial Law (from 1949-1987)”. That is, many restrictive regulations about assembly and procession were not totally fresh in 1988 – the year in which “Assembly and Parade Act” was firstly legislated. Since the early 1980s, Taiwan people had launched a series of collective protests because of various reasons, and those protests successfully weaken the power of “Kuomintang (KMT)”. However, in order to consolidate their power and keep the public order stable, KMT decided to enact a new act with strong restrictive spirit to regulate the assemblies and processions of people when they still had far more legislators in Legislative Yuan than their opponent – Democratic Progressive Party (DPP) did. A few years after “Assembly and Parade Act” was legislated, the legislators of DPP kept fighting for modifying the act in Legislative Yuan. They did not succeed until 2000 because they could not win enough seats in Legislative Yuan to help them defeat KMT and achieve this political target. In 2000, for the first time, DPP won the presidential election, and in 2002, they won more seats than any other parties in Legislative Yuan. This was seemingly a good opportunity to modify the “Assembly and Parade Act.” Unfortunately, during the eight years that DPP were in power, from 2000 to 2008, they not only never tried to modify “Assembly and Parade Act”, but also thwarted the proposals from legislators of KMT to modify “Assembly and Parade Act.” The apparent history truth is that, when a political party is not in office, they tend to advocate that people should be guaranteed the right to assembly and procession and claim that “Assembly and Parade Act” have to be revised to correspond to modern democratic trend. On the other hand, the incumbent party is likely to claim that the contents of “Assembly and Parade Act” are perfectly reasonable and require no modification. Finally, my analysis of results of criminal judgements on “Assembly and Parade Act” shows that hiring a lawyer and appealing to higher court play a vital role for the outcomes of litigations. Statistics show that defendants that hired lawyers or appealed to higher court had much higher rate in getting favorable results than those who did not. That is to say, economically-disadvantaged people may have no choice but to either accept the relatively unfavorable result in criminal suits or give up making themselves to be heard via assembly and procession, because they have difficulties in paying the attorney fee or the appeal fee. In other word, these groups of people are denied of an effective way to arouse public awareness and to influence the politicians that make policies. The result of analysis shows that “Assembly and Parade Act” did have negative influence on some people who need to voice their opinions through assemblies or processions. More and more judges now recognize the importance of freedom of assembly and the fact that there are many inappropriate regulations in our “Assembly and Parade Act”, and they managed to help some defendants in each independent judicial practice. Nevertheless, the most fundamental solution to substantially protect the freedom of assembly is to modify our “Assembly and Parade Act” and completely remove those restrictive regulations that are the relics of “The period of Martial Law”.