The Implementation of the "Police Powers Act" ~ Moving Forward and Shedding the Notorious Image of a Police State

Prompted by an ordinary and seemingly unremarkable roadside spot-check case that could happen to anyone every day, the Judicial Yuan issued "J.Y. Interpretation No. 535" on December 24, 2001. This ruling declared the improper exercise of police powers—which had persisted under the slogans of maintaining public order by various levels of government even after the lifting of martial law—to be "unconstitutional," marking a major achievement for human rights and the rule of law in Taiwan. Regarding this, Attorney Hsueh Chin-feng noted in Issue 36 of the Judicial Reform Magazine:

From the expansion of police powers during the martial law era to the continued improper exercise of police powers under the slogans of maintaining public order by various levels of government after the lifting of martial law. During this period, the vast majority of the public were captivated by the government's propaganda of "using severe penalties in chaotic times," repeatedly acquiescing and enduring restrictions on—and even the deprivation of—their freedom of movement, right to privacy, and property rights, not daring to oppose it. Meanwhile, socially marginalized groups who had long faced discrimination, such as teenagers, homosexuals, or sex workers, suffered in silence. Furthermore, some "unwise individuals" who refused spot-checks and drove away were shot and injured or killed, or were transferred by the police for prosecution for obstructing official duties because they contested spot-checks and questioning, ultimately often being convicted by the courts... "J.Y. Interpretation No. 535" was truly like timely rain in a desert, halting Taiwan's cyclical return to a police state. Progress in human rights mechanisms truly often emerges at accidental and interesting times and through unexpected cases. Interpretation No. 535 is undoubtedly a major leap forward for human rights and the rule of law.

Attorney Ku Li-hsiung also wrote in the same issue of the magazine, stating that as early as 2000, the Judicial Reform Foundation (JRF), based on the draft of the "Police Power Exercise Act" commissioned by the National Police Agency and prepared by Professor Li Chen-shan, regularly held meetings and discussions to formulate a version of the "Police Power Exercise Act," which was published in Issue 37 of the Judicial Reform magazine. This version explicitly defined the purpose of police exercising their powers, the limitations on the exercise of police powers, and the obligation to proactively state reasons and present service identification when exercising such powers. It provided detailed regulations on the requirements, procedures, and permissible actions for measures such as identity verification, forensic identification, evidence collection during assemblies, processions, or other public activities, long-term use of informants and undercover agents, the use and preservation of citizens' data, summoning citizens to appear, immediate compulsion, detention of persons, detention of property, restriction of use, entry into premises, and dispersal. It also granted citizens remedies such as raising objections against the unlawful exercise of police powers, explicitly stipulated citizens' right to claim damages when the police unlawfully exercise their powers, and established the right to claim compensation for losses when citizens suffer special sacrifices due to the lawful exercise of police powers by the police.

December 2003: The "Police Power Exercise Act" Officially Enforced

The Legislative Yuan passed the third reading of the "Police Power Exercise Act" in June 2003, and it was officially enforced on December 1, 2003, significantly reducing the scope of police questioning, spot-checks, and alcohol breath testing. This legislation, enacted in accordance with the intent of "J.Y. Interpretation No. 535," symbolizes that Taiwan has officially bid farewell to the police state characterized by arbitrary police spot-checks, crackdowns, random inspections, and questioning. While this is certainly progress toward a state under the rule of law, the realization of the rule of law cannot rely solely on the good intentions of law enforcement personnel; future implementation depends on the public's supervision of law enforcement personnel to guarantee the enforcement of this law. On the other hand, the provision in Article 14 of the Act authorizing the police to notify citizens without a warrant to appear for investigation or to execute forensic identification measures easily hollows out the warrant principle under the Code of Criminal Procedure for personal liberty; additionally, Article 15 stigmatizes specific criminals who have completed their sentences or been released on parole as "population of concern for public security" and authorizes the police to conduct regular visits to prevent recidivism, which has seriously infringed upon these individuals' right to reintegrate into society. All of these are issues that must be approached with caution in the future. To thoroughly understand whether the police are effectively implementing the Police Power Exercise Act, the JRF also established a grievance mailbox, encouraging the public to report cases of unlawful spot-checks or roadside checks encountered after the implementation of this Act to the JRF. After compiling the data provided by the public, the results of the statistics will be announced to the public at an appropriate time and used as the basis for demanding improvements from the National Police Agency of the Ministry of the Interior.