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  • Interpretation
  • No.718【Approval for Urgent and Incidental Assemblies and Demonstrations】
  • Date
  • 2014/03/21
  • Issue
    • Are the provisions of the Assembly and Demonstration Act regarding application for approval which do not exclude urgent and incidental assemblies and demonstrations unconstitutional?
  • Holding
    •        The provision of Paragraph 1, Article 8 of Assembly and Demonstration Act that holders of outdoor assemblies and demonstrations shall apply with the competent authority for approval, which does not exclude urgent and incidental assembly and demonstration, and the proviso of Paragraph 1, Article 9 and Paragraph 2, Article 12 in relation to the application for approval for urgent assemblies and demonstrations, are contradictory to the Proportionality Principle of Article 23 of the Constitution, and not in compliance with the spirit of the protection of Freedom of Assembly of Article 14 of the Constitution, and shall lose effect from 1 January 2015. J.Y. Interpretation No. 445 of this Yuan should be supplemented.
  • Reasoning
    •        Article 14 of the Constitution provides that the people shall have the freedom of assembly. The purpose is to safeguard the people’s peaceful expression of opinion by collective action, so as to communicate and dialogue with various levels of society, to form or change public opinion, and to influence or supervise the formation of policy or laws. This freedom is based on the idea of sovereignty of the people, and is an important basic human right in the implementation of democracy as it facilitates thinking and debate, respects differences, and embodies the constitutional spirit of co-existence. To protect such freedom, in addition to providing suitable places for assemblies and adopting effective security measures to protect assemblies, the country should enact a law and formulate the system in such a way as to enable the participants in assemblies or demonstrations to exercise their freedom of assembly without fear (cf. J.Y. Interpretation No 445 of this Yuan). In using law to restrict people’s freedom of assembly, the Proportionality Principle of Article 23 of the Constitution should be followed so as to comply with the intention of freedom of assembly as protected by the Constitution.
      
    •        Outdoor assemblies and demonstrations need various social resources such as places and roads etc. By nature, they are prone to affect the normal running of society, and may provoke counter-measures by opponents leading to a deepening of conflict. The competent authorities should prepare in advance in order to balance the protection of freedom of assembly and the maintenance of social order. Therefore, the promoters of an assembly or a demonstration should, based on the standing of reliance, cooperation and communication, provide the competent authorities necessary information in a timely fashion to enable them to understand the nature of the event, to take into account overall social conditions, to plan properly the time, location and manner of public places or roads to be used by the assembly or demonstration, and to allocate properly the manpower and equipment for law enforcement so as to assist with the successful assembly or demonstration, and to minimize its impact on social order. Within this scope, the legislators shall have the freedom of formation to adopt a procedure of prior approval or reporting so as to enable the competent authorities to acquire the information necessary for law enforcement and to act properly. This is why Paragraph 1, Article 8 of the Assembly and Demonstration Act specifies that outdoor assemblies and demonstrations should, in principle, apply for approval from the competent authorities. This is affirmed by J.Y. Interpretation No. 445 of this Yuan. However, it is unlikely that urgent assemblies and demonstrations which result from an urgent need and which cannot achieve their purpose unless they are held immediately, can be held only after obtaining approval. In addition, for incidental assemblies and demonstrations where a crowd gathers without prior convention due to special causes and where there is in fact no convener or responsible person, it is not possible to apply for approval or make a report in advance. Although the proviso of Paragraph 1, Article 9 of the same Act, which specifies that “provided that in the event of unforeseeable material urgency and where the purpose cannot be achieved unless being held immediately, the requirement of prior 6 days’ application is not applicable”, and Paragraph 2, Article 12 of the same Act, which further specifies that “in response to the application based on the proviso of Paragraph 1, Article 9, the competent authority should notify the responsible person in writing within 24 hours of receiving the written application”, have relaxed the period of application for urgent assemblies and demonstrations, yet, prior application is still required, and there is a waiting period of at most 24 hours pending the competent authority’s decision to approve or not. In addition, regarding incidental assemblies and demonstrations, prior application for approval is still required. Both regulations impose by law on the people obligations which as a matter of fact cannot be abided by and immediately derive the consequential legal effect such when the people cannot apply for approval but hold the assembly and demonstration, the competent authority has the powers of compulsory stoppage, or to order dismissal (reference made to Item 1, Article 25 of the Assembly and Demonstration Act). This is contrary to the intent of J.Y. Interpretation of this Yuan “the freedom of assembly as protected by Article 14 of the Constitution does not exclude incidental assembly”, “approval system is not applicable to incidental assembly and demonstration.” As to the purpose of maintaining social order, the legislature is not prevented from considering the nature of the event, expressly regulating by law the urgent and incidental assembly and demonstration by means other than the approval system, which will cause lesser aggravation but could achieve the same purpose. Therefore, Paragraph 1, Article 8 which does not exclude urgent and incidental assembly and demonstration; the proviso of Paragraph 1, Article 9 and Paragraph 2, Article 12 regarding the application for approval for urgent and incidental assembly and demonstration are unnecessary restrictions on people’s freedom of assembly, and contradictory to the Proportionality Principle of Article 23 of the Constitution, inconsistent with the intent of the freedom of assembly as protected by Article 14 of the Constitution, and shall lose effect from January 1, 2015. In this regard, the J.Y. Interpretation No. 445 of this Yuan should be supplemented.
      
    •        The applicants also applied for the interpretation of Paragraph 2, Article 2, Paragraph 1, Article 3, Article 4, Article 6, Paragraph 2, Article 8, Forepart of Paragraph 1, Article 9, Items 2 and 3, Article 11, Paragraphs 1 and 3, Article 12, Articles 14-16, Article 18, Article 22, Article 24, Items 2-4, Paragraph 1, Article 25, Article 28 and Article 30. However, they are not the applicable provisions for the underlying cases, or not the provisions applied by the final judgment. In addition, as to the application for those provisions applicable to the underlying cases and applied by the final judgment, ie, Item 1, Paragraph 1 and Paragraph 2, Article 25, Article 29, and Paragraph 1, Article 2 as applied by the final judgment, the application had not submitted concrete reasons for the formation of objective belief that the law is unconstitutional, or objective description of concrete unconstitutionality. The above applications are inconsistent with J.Y. Interpretation Nos. 371, 572 and 590 of this Yuan, or Item 2, Paragraph 1, Article 5 of the Constitutional Interpretation Procedure Act, and should not be accepted. It is so indicated herein.
      
    • ______________________
      
    • * Translated by Chun-yih CHENG.
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