The Significance of Incorporating Fundamental Criminal Rights into the Constitution

Influenced by the Christian view of human nature, Western liberalism on one hand extraordinarily cherishes individual human dignity and firmly believes that freedom and human rights are indispensable values in human society; yet on the other hand, it also confronts the sinful and fallen nature of human beings, thereby harboring a profound sense of the dark consciousness regarding human nature. This dark consciousness has led the Western tradition to value objective legal systems. Since human nature is inherently unreliable, power in human hands very easily "runs amok," making power an extremely dangerous thing. Generally speaking, historical approaches to solving the problem of power can be divided into two kinds: one is to hope that those wielding power, through the cultivation of inner morality, can purify power with a perfect personality; the other is to seek institutional safeguards. Starting from the Christian view of human nature, it is difficult to adopt the first approach, leaving naturally only the second approach (quoted in full from Chang Hao, Dark Consciousness and Democratic Traditions, pp. 3-4, 8).

In Taiwan, I am uncertain whether the belief that "freedom and human rights are indispensable values in human society" has become a shared and steadfast conviction among all citizens. However, I am quite certain that the public lacks due awareness of the notion that "power tends to corrupt, and absolute power corrupts absolutely," and has little concrete concept of a central idea of Western liberalism: "the separation of powers and mutual checks and balances." This phenomenon results in our citizens not only tolerating the government's use of methods that infringe upon freedom and human rights to investigate, prosecute, and punish crimes, but also believing that we can hope for those in power to cultivate perfect character to purify their power. Regarding this, I truly feel a sense of sorrow.

If we examine the practical implementation of criminal human rights in individual cases today, we can easily discover that even the most basic presumption of innocence principle proclaimed by the "Universal Declaration of Human Rights" is merely empty talk in Taiwan. If we further examine whether we have established a criminal procedure system conforming to the ideal of a "fair trial"? Whether people are arbitrarily summoned, apprehended, searched, seized, or wiretapped? Whether criminal suspects are granted the full right to remain silent? Whether criminal defendants and their defense counsel are granted the full right to cross-examine witnesses? Whether the confessions of criminal suspects are obtained through improper methods such as threats, inducement, or torture? Whether, in the absence of other scientific evidence, a criminal defendant's confession is used as the sole evidence to establish guilt? Whether evidence is unlawfully gathered and obtained through human rights-infringing methods in broad daylight and used to establish the defendant's guilt? We truly feel ashamed when facing answers to these questions, and I sincerely hope not to hear someone blindfolded telling me that we have no problems at all. Nor do I truly believe that a society that tolerates the government using methods that infringe upon freedom and human rights to solve crimes can be a society where everyone abides by the law and crime rates are low.

This time, the Academic Research Committee of the Supreme Court drafted constitutional articles on fundamental criminal rights, primarily aimed at codifying related fundamental criminal rights concepts—such as the protection of due process, the principle of the presumption of innocence, the protection of personal, residential, and communication privacy freedom through the warrant requirement, the ideal of a "fair trial," the rights of criminal defendants, the confession rule, the exclusionary rule for illegally obtained evidence, and the prohibition of double jeopardy. It is hoped that by combining the strengths of all sectors to lobby the National Assembly to directly incorporate these into the Constitution, this will not only accelerate the reform of the criminal procedure system, prevent the realistic drawbacks of human rights infringements, and echo the universal human rights requirements of the "Universal Declaration of Human Rights" and the "International Covenant on Civil and Political Rights," but also hope that through the constitutionalization of these concepts, fundamental human rights awareness will be deeply rooted in people's hearts, bringing the Constitution to life in numerous judicial individual cases and vividly applying it to our communal life.

Regarding the aforementioned proposed constitutional articles, the Ministry of Justice likely has the most objections concerning the provision that all compulsory measures shall adopt the warrant requirement. According to news reports, Minister Yeh even specially instructed the Department of Prosecutorial Affairs to gather regulations from other civil law countries. In fact, this is unnecessary. Because in the explanatory notes of the proposed articles on fundamental criminal rights suggested by the Academic Research Committee, relevant provisions of the United States Constitution Amendments, the Japanese Constitution, and the German Basic Law have already been explicitly cited. This explains that regardless of whether in Anglo-American or civil law advanced countries, any deprivation involving personal, residential, and communication privacy freedom adopts the so-called warrant requirement. That is, unless it is a flagrant offender or there are urgent circumstances, prosecutors or police have no right to arrest or detain individuals, nor do they have the right to conduct searches, seizures, or wiretaps on a person's body, objects, residence, or communications without obtaining a written document issued and stating reasons by a court. Various advanced nations under the rule of law protect fundamental human rights in criminal procedures from arbitrary infringement by state public power through such prior judicial review methods. In our country, because cases of torture and extortion in investigation practices are frequently witnessed, and fact-finding and evidence-gathering in the trial stage are excessively perfunctory, the credibility of the judiciary is near ruin. If we do not actively promote the constitutionalization of fundamental criminal rights to completely overturn the concepts of the people, police, prosecutors, and judges, how can we expect a day of clarity and rectitude in criminal trials?

If the purpose of a government's existence is to prevent human depravity and curb human evil, then we should not tolerate using an even more depraved method to curb an evil. We should harbor an equally high degree of vigilance toward the sinful nature of those in power and the fallen nature of ordinary people. I believe that cherishing the dignity of human nature and maintaining vigilance against the potential depravity of those in power constitute the most important significance of incorporating fundamental criminal rights into the Constitution.