The violent putdown of protesters we witnessed during the Sunflower Movement last month has continued even after the movement was over. As the people took more of their grievances to the streets, the police resorted to water cannons (used at anti-nuclear rallies in April), public searches and interrogations without just cause (during demonstrations outside a police precinct in Taipei), and arresting student protesters. The government also ramped up its oppression of civic participation in general, like proposing to detain individuals even prior to any wrongdoing as a “preventive” measure, and threatening to indict activists under Criminal Code Clause 153 as “inciting unlawful activities.”
As the conflict between the government and the people intensifies further in Taiwan, the judicial system stands as the last battleground for civil society to assert their rights and prevent the government from overstepping its constitutional bounds. The tactic of taking the government to court is referred to as “legal mobilization.” One of the best examples is the civil rights movement in the United States, where groups such as the NAACP fought for the unconstitutionality of segregation of black and white students in schools. Litigation and debate at the highest court of the land mobilized social energy to force a complete and historical change.
But can this tactic actually work to stop the state’s encroaching on democracy in Taiwan? The key is with the judges hearing each individual case.
To successfully overturn decades if not centuries of injustice requires not only a particular case with determined plaintiffs and lawyers, but the overall structural conditions must be ripe. We look to a neighbor to the south, Hong Kong, which has an impressive record of judges upholding the people’s rights against the ruler—surprisingly so, even after China took over governing the island. We can credit Hong Kong’s legal foundations since British rule, where its Basic Law provides a robust framework for fundamental rights, and Hong Kong’s active roster of lawyers and civic groups. But the most important reason, I believe, is that Hong Kong’s judges have not been afraid to hear cases and rule against the government.
The courts established during British rule in Hong Kong has a tradition of independence, which continued even after China’s takeover. Hong Kong judges generally see themselves as the protectors of human rights, and the judges in the highest court, the Court of Final Appeal, take very seriously their role of maintaining Hong Kong’s rule of law. Judge Kemal Bokhary, on the courts’ an integral, proactive role in an undemocratic society, had this to say: “the deficiency in Hong Kong’s democracy will force the people to take their problems to the court and give us a bigger burden, but we are glad to take on this responsibility.”
Compared to Hong Kong, Taiwan is missing only one last piece of the puzzle. Just like Hong Kong, Taiwan’s civil society is facing a political system closing itself off to meaningful citizen participation, and elected representatives that would rather represent their party than their constituents. We have a ruling party that acts as if it was still living in its authoritarian past. To fight against this Goliath, Taiwan’s lawyers have accumulated a wealth of knowledge and experience since the 1980s with a series of cases on labor, the environment, and corruption. But we are still waiting for our judges to get with the program. Taiwan’s judges are not nearly as civic minded as their counterparts in Hong Kong, and they mostly see themselves as no more than a bureaucrat in the judiciary branch of the government. Taiwan’s Supreme Court judges stress morals and loyalty to authority, lack basic concepts of constitutional rule of law, and are hopelessly conservative, even in the face of the legal sector’s demand for reforms.
Fortunately, even with the conservative nature of the court system, we have seen many individual cases get heard. Examples like the Meiliwan resort development in Taitung, Dapu land expropriation in Miaoli, seizure of the Wang residence in Shihlin, Taipei, and the case for wronged workers from plant closures throughout the country, all prove that there are still judges in Taiwan willing to give the aggrieved their day in court and not afraid to rule against the government.
After our spring of civic awakening, the courts will only be flooded with more human rights cases. Are our judges ready? In a Taiwan where the system of checks and balances is broken, how will this last defense for rule of law and democracy respond to the demands of the society? What will the future of Taiwan’s courts look like? Will it inherit the traditional role of a crony for the authoritarian ruling KMT party, or become the defender of the people’s rights as stated in the constitution? Dear judges, it’s your turn.