Discussions in the service section, in the previous two sections, which is just a brief list of ROC constitutional rights. Then we also discussed that in order to add further rights into the quite brief, concise list of the ROC constitutional rights many strategies have been undertaken. The legislative model, the interpreted model, all work to further enriching the constitutional protections of fundamental rights and freedoms. In this subsection, we are going to take a few examples of how the court has interpret the listed rights and fundamental freedoms in the ROC Constitution to enable you to understand better the nature and the protective scope of the rights. The example in this subsection would be personal freedom and due process. If you recall, the list of the ROC Constitution, although the list has been brief and all the listed rights are in a way also quite simple, but there's one exception, that's Article 8 of the ROC Constitution. If you read this article, you will realize this is the most lengthy article of the constitution and most words you can say and you can discover compared to other provisions indeed. Article 8 being the most lengthy article of the ROC constitution, being also the first individual freedom of protection in the ROC Constitution has is essential place in the Constitution, it guarantees personal freedom. If you read Article 8, Paragraph 1, you realize that personal freedoms must be guarantee to the people. And then it also guarantee that any one when captured by the government, they will have the so-called right to habeas corpus, to resort to the court, to be brought to the judge in order to know whether you are lawfully confined or you should be immediately released. Because of this elaboration of protection of personal freedoms in Article 8, over the years, the Constitutional Court also has rendered many decisions in quite wide ranging of the aspects concerning the protection of personal freedoms, police detention, and also the detention of so-called hooligans, the bad guys, and then pretrial detention, and then detention of people if they fail to pay taxes, and then the issues concerning immigration, and also last but not the least, the quarantine or isolation for pandemic. We are going to these important decisions one by one. The very first interpretation given by constitutional court is interpretation number 166 concerning police detention. I am sure it now you can recall in the very beginning of our class, other professors have talked about the authoritarian history of Taiwan and how Taiwan has work very hard to move from authoritarian regime to democracy. Prior to 1987, before the lift of martial law degree, people in Taiwan could be easily detained by police without any formal charge. In this interpretation number 166, the court guarantee that no person shall be tried or punished otherwise then by a court. The court repeated again, the guaranteed in Article 8 of the ROC Constitution. According to the rule of the change circumstances, the court guarantee that fundamental physical freedom should be ensured. The administrative detention or compulsory labor imposed by police who have to be transfer to the court as soon as possible as you can recall, 24 hours guarantee in Article 8 of the Constitution. Further on, the court repeated again in interpretation number 251, detention, force labor. Again, these are the very usual measures undertaken by the authoritarian government prior to our democratization, prior to 1987. But even back then, the court always said that according to Article 8 of the ROC Constitution, these detentions will have to be examined by court, by judges within 24 hours. Later on in interpretation number 384, the court, again, afforded these protections even for those bad guys, so called hooligans. Even as a society, people often time will treat those bad guys with undeserving of the constitutional protection of rights. But the core ensure that substantive due process of law, the protection of fundamental freedoms will equally be extended to those bad guys. Interpretation number 384 ensure also the right to habeas corpus, the right to resort to court, the right to resort to judges within 24 hours of your arrest, or detention should be provided. You probably will find surprising that in Taiwan, our lower actually enable the government to detain people who fail to pay taxes. That's certainly is a very important measures that government can make. If you recall, in our first section, we had said that the Constitution guarantee the right as well as the duties. One of the duties of citizens is to pay taxes, that is why the law will allow these very restrictive measures imposed on those people who fail to pay taxes. But even you have the duty to pay taxes, and the law permitted the government to detain you when you fail to pay taxes. The Constitutional Court, again argue that article 8, protection will have to be applied in this situation. Interpretation number 588, the court guarantee that again, the administrative custody imposed in the situation of failing paying taxes will have to be examined by the court, that kind of decision will have to be made by the judges. Interpretation number 708, the constitutional court extends article 8 protection to foreigners. Here, foreign nationals under, the foregoing temporary detention, immigration detention should be afforded a remedy, or opportunity to request prominent judicial review of the detention. Once a temporary detention is imposed via any immigration authority, the detained foreign national can be, and must be notified in writing using the language comprehensible to him, and a written notice should include the reason and legal basis of such detention, as well as the method of judicial remedy. Since interpretation 708, I think any foreigner, when they walk through the custom of Taiwan, they will feel secure in their personal freedom. Even if they are to be detained by the government authority, they will be notified, most importantly, the cost you show court emphasize in the language comprehensible to them. In other words, if is Indonesian individuals passing by, and for some reason detained by Taiwanese authority, English is not enough, Indonesian language must be also provided, so to other foreign nationals. Interpretation number 708, would be a very important decision, symbolize Taiwan as a country. Really extend these universal nature of protection of human rights to all people, not just Taiwanese nationals, but also foreign nationals alike. Now I would like you to reflect. The court so far has only afforded Article 8 protection to foreign nationals. But are foreigners only entitled to Article eight? Do you think of any other fundamental rights and freedoms in Taiwan's Constitution should be also extended to foreign nationals? For example, free speech? For example equality? For example, right of privacy? Those are the fundamental rights and freedoms should be also extended to foreign nationals, or they only entitle to Article eight protection? That's for you to reflect. Further on, we will need to also discuss one of the areas in the protection of Article eight that is not involved with police detention, or immigration authority detention, or criminal violations. But more to a context that we are all now in, the pandemic. Interpretation number 690, the court deals with something not the present COVID-19 situation, but 10, 15 years ago, the SARS situation. Back then because of the occurrence or the spreading of the contagious disease, all governments, not just Taiwanese government, sometimes they will impose restrictive measures to isolate or to quarantine any individuals who had the possibilities of infection or who have the risk of spreading the diseases to others. These certainly involved with the constraining of personal freedom. Now if you think back Article eight of the Taiwanese Constitution, whenever your physical freedoms is restrained, you have your fundamental rights and freedoms to report to judge or court within 24 hours of your detention or your physical confinement. Would the same protection extent applies to the situation of pandemic? Will the same protection, same provision applies to the contagious diseases? To the emergency situation when we are all now feeling the threats of not any bad guys, not any foreigners, but viruses. This certainly was a challenge to the court. In this interpretation, the court spends so much time to discuss the nature of the confinement in the public health crisis and also whether Article eight protections should extend to the restrictive measures given the public health crisis. If you look further, the court said that compulsory quarantine obliges people to stay at a specific place for specific period, and not to contact any other persons. These serious confinements, these serious restrictions, certainly is a deprivation of personal freedom. The court goes further on to say, given it's a serious physical confinement and serious limitation to fundamental freedoms, then it must be also examined by Article eight. The court argue that although compulsory quarantine restrict personal freedom to a specific location, but its purpose is different. Unlike the context of bad guys or the context of criminal offenses, here we see it's confining people for their own health or for others' health. The court argues that in the situation this differs from criminal punishment in nature. It also involves the expertise of medical treatment and public health, and therefore a more lenient test should be applied to the situation. In other words, the court maybe look very stringent in criminal offenses, in the confinement of those bad guys. But in the situation of public health, the court might give much more leniency to the health authorities in their decision of physically confining people for isolation or for quarantine. This kind of compulsory quarantine for the court is a necessary measure for the issue at the present. Judging from the literal interpretation and legislative intent of the relevant public law, the court argue that, the law will have to be put under the common sense of the society and to be a further examined by the court. The purpose of compulsory quarantine will have to be deemed, will have to be examined whether they are necessary or not. For the court, since the confinement is to protect either the isolated persons of their own or other's house and the purpose then, was seeing as legitimate. Further on, see this from the viewpoint of violation of personal freedom and arguing that although compulsory quarantine is the deprivation of personal freedom, yet it protect life and health and does not have the same severe impact on human dignity of quarantine the person as in other contests of detention. In the end, the court justified the confinement of physical detention, confinement of isolation, confinement of compulsory quarantine as a reasonable and necessary measure to protect public interests, to protect public health. Nevertheless, the court added a very important final note to this. The court argue that given the importance of public health, given still the serious nature of physical freedoms confinement. Although the court justified the isolation or quarantine in the public health crisis, the court nevertheless says that compulsory quarantine, although not ordered by the court, does not violate the Constitution. But for those people who sacrifice their physical freedom, for the public health, for public good is important for the law to stipulate the maximum length, 14 days, 7 days, or 7 days, 14 days, 21 days, and the latest must be specified, and most importantly, they will have to be compensated after their sacrifice. That's the price to pay, for individuals, for their physical freedoms to be sacrificed in order to exchange for the public health, order for the public good. From the PowerPoint, you can see, in order the to deal with the present public health crisis in the COVID-19 situation. People who receive the older for isolation or for quarantine, they will receive this notice and as we said in interpretation number 708 article 8, protection has been essential to foreigners. In the notice you can see is that both in English and Chinese. And then provides you; your rights, your notification and then if you have any complaints with your quarantine order, with your isolation, order then you can notify your family, your friends, and then make petitions to the court. This notice in paper says so much the progress of Taiwan's protection of physical freedom by Article 8. I also would like you to reflect further. Is this only personal freedom? Then what about other rights? Then, is this only personal freedom extending to foreigners? What about other rights? And then you think the court is fair in extending also this protection during the pandemic. This time, Taiwan has done pretty good job in terms of dealing with COVID-19. And then you might be also surprised to realize as I provide you this notice, whenever any individuals, Taiwanese nationals or foreigners, they will receive this notice and then notifying them they rights to resort to the court. But do you think, is this necessary? Or in other countries, for example, they have been dealing with the pandemic in difficulties, can they afford giving such a notice to their nationals, to their foreign visitors? This is something for you to reflect.
