Ma: ... Taiwan has also become the freest country in the world for those wishing to assemble or parade.

[Taipei Times] EDITORIAL: Ma's ironic Human Rights Day

Thursday, Dec 11, 2008, Page 8

At the invitation of the Taiwan Foundation for Democracy, President Ma Ying-jeou (馬英九) delivered a keynote speech yesterday marking International Human Rights Day in Taipei.

In his speech, Ma expressed the wish that the legislature would speedily approve the UN International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights to show the importance Taiwan attaches to human rights. ...

[China Post] Ma calls for legislative endorsement of human rights covenants

President Ma Ying-jeou yesterday called on lawmakers to endorse two documents for the protection of human rights, but the opposition camp claimed that human rights conditions have been back pedalling since he took office in May.

Ma asked the Legislature to give its long-delayed endorsement to two international human rights documents to help implement human rights protection in Taiwan. ...

Comment:

By far the best statement is: In his speech, Ma said: “The government has worked incessantly to uphold human rights ... Taiwan has also become the freest country in the world for those wishing to assemble or parade.”

The freest country in a wold only including China and North Korea???
If not, Mr. Ma just lied in public and obvious for million of people.

Sorry, maybe I have always been in the wrong places in this world, but I would even call the cabinets ideas for a new assembly law are in my eyes extremely restrictive.

I presented the German Assembly law some time ago and there are much more liberal countries in Europe.

I live in a country with gay marriage, weed smoking and a liberal Jew as our capitals mayor and I would state, Mr. Ma has just been in the wrong countries.

Honour Chiang Kai – shek, the worlds number 4

In the list of the biggest mass murders in human history:

1.) Joseph Stalin, Communist, Soviet Union, 1929-1953, 42,672,000
2.) Mao Tse-tung, Communist, China, 1923-1976, 37,828,000
3.) Adolf Hitler, Fascist, Germany, 1933-1945, 20,946,000
4.) Chiang Kai-shek, Militarist/Fascist, China, 1921-1948, 10,214,000

The few thousand or ten thousand he killed in Taiwan could not really help him to get a better rank. Hitler was just one number to big for him. But at least Chiang –Kai – shek could die peacefully and wealthy, knowing his son would do a good job.

He receives congratulations in every local Memorial Hall (but he dislikes Democracy Memorial Halls).

The State of Mind

in Taiwan in 21st century is similar to the state of mind in Europe before the French Revolution. The Taipei times has published a cartoon fitting to this situation, referring to the Ancien Régime, the old order (before the revolution):
http://www.taipeitimes.com/News/editorials/photo/2008/11/19/2008032379

The old order in China was the imperial system and the philosophy of Confucius representing the state of mind of an ancient feudal state.
After the revolution Sun Yat-sen, tried to install a new order, based on the three principles of the people. Heavily influenced by his experience in Europe and North America, he wanted to install a multinational, socialistic, power separated constitutional democracy. To fit this system into a Chinese environment he chooses to adopt parts of the imperial system and of the philosophy of Confucius.

When Chiang Kai-shek, installed his dictatorship, officially the three principles were still the ideology of the Republic, but in fact only the imperial system and a rest of Confucius survived this process. He and his party became the new Emperors.

From Sun Yat-sen’s new order, the Republic of China has developed to a country were political philosophy is reduced to some: be quite, don’t think, follow your political leaders, teachers, parents, …. And of course work harder statements.

Has someone counted how many times, the KMT, leading Government officials or conservative journalists have used the term: work harder? Has someone compared it with the number of use of words like democracy or human rights?

I want to finish with linking some articles about Taiwan’s state of mind and the Strawberry movement in the Taipei Times (which is because of its cooperation with the British Guardian the most European of Taiwan’s Newspapers):


EDITORIAL: Ma should amend the assembly law

The dire straits of Taiwanese democracy

Student movements go high-tech

A respond to Michael Wu’s Comment

‘How do you know that your opinions represent the public opinions of Taiwan's residents? I think most people in Taiwan feel that we are a free and democratic country. Can anyone offer scientifically reliable and valid figures to prove that most people in Taiwan would like to revise the Parade and Assembly Law? Do not tell me that your voice can represent most people in Taiwan. I don't think so.’

I am not here to represent as I do not represent and as I do not want to represent!

The beginning of every democratic process is discussion.
Some people misunderstand that politics need a leader to follow (or lets him call Führer or Duce) and democracy is if you choose your leader. That is not democracy. That is dictatorship.
I want to discuss as I think discussion is necessary and I want to help people with this, contributing ideas to this process.

So I will not speak for Taiwan as I can not speak for Taiwan, but I will explain you why I consider Taiwan not to be a full democracy.

First of all I want to define what I understand under a Democracy.

Democracy in a literal translation from ancient Greek means power of the people (δήμος [démos], people and κρατία [kratía], power).
Democracy is a form of government in which the supreme power is held completely by the people under a free electoral system.

I don’t want to talk about all the junior high school knowledge about election systems in ancient Greek cities, but go on to a modern interpretation of democracy.

My definition of democracy is a constitutional state based on Montesquieus ideas of separation of power.

In the interpretation of Emmanuel Joseph Sieyès which is the basis of modern theory of constitution, we have to distinguish between pouvoir constituant and pouvoir constitué, the sovereignty in a power separated constitutional state and the souverenity to of the people to give themselves a constitution. All state authority is derived from the people. The people are the sovereign of a democracy.


The basic principle of separation of power was de jure installed by Sun Yes-men in form of a Yuan system in the Republic of China (so we can not blame him for its fail).
There exists a constitution and in principle elections were part of this system.

De facto this system was not existing at least since the Republic of Chinas authority is restricted to Taiwan as there was is no distinction between the powers and no independent control of them in a one party state or in a military dictatorship as it was under the rule of Chiang Kai-shek.
With the occupation of Taiwan by the Republic of China the law was expanded to an area where it never got any legitimating. The authority of the state was not derived from the people who lived in this country! This situation continued for decades, until the end of the, martial law and the first ‘free’ presidential elections.

I think the step from a dictatorship to democracy needs an initial singularity in a countries history, an hour zero.
This might be a revolution (like in France) or a lost war (like in Germany).

Taiwan’s development to ‘democracy’ was a top – bottom approach. The leading party of the one party system reacted on the pressure of the people, but did not fundamentally change the system.

How many of the laws from the old time were never changed?

How many of the people in charge, responsible for the misery of so many families never lost their position?

Was there a Taiwanese Nurnberg trial, to charge the ones responsible for death and detention of thousands of Taiwanese during the dictatorship?

Didn’t the KMT still control many of the positions in the administration?

Wasn’t the KMT the richest party in the world, with a multi billion-dollar asset and ownership of companies in sensible areas like the mass media?

Isn’t the KMT still controlling direct or indirect most of the media in Taiwan?

Isn’t the national anthem still singing about the party who ruled the country alone once?

Isn’t it true that in Taiwanese TV, little girls can still sing about Chiang Kai-shek, who is in the rest of the world considered to be one of the little brothers of Hitler, Stalin and Mao?

What about the dignity of his victims? How is Taiwan honouring them?

Who is bowing to their families?

Aren’t people very creative in calling massacres or dictatorship incident or white terror?
….

There are so so many other questions, people should start to ask.

If you say, that you think most people in Taiwan feel that they are a free and democratic country, I will answer you with a quote:

‘She can talk beautifully about democracy. But she does not know how to live democracy.’

It is a famous quote by the former first lady of he United States Eleanor Roosevelt about Taiwan’s former first lady Soong May-ling.
The she could be lady Taiwan too.

If you ask many Taiwanese students about what democracy is, you will have almost no chance to get a proper answer. You cannot even get a correct definition and I am not talking about interpretations.
How can a country be a democracy, if even the best-educated persons in this country do not know what it is?

But how could they know? Who told them? How much time in their education is spent on it? Do they learn about the theory of constitutions? Do they learn about constitutional models in different times and countries? Do they learn about the political system, about the role of separated powers, about the importance of the press and about the role of political parties in a parliamentary system, …
This is what students at other places learn in high school! You should expect University students to know about this.

What about the media? Isn’t it the role of the press in a democracy to inform and educate the people in the spirit of the constitution? Isn’t the freedom of press a mayor human right that should be the basis for every constitution?

There is more or less no press qualified to fulfil this idea in Taiwan. The quality is a shame for an industrial nation and a mayor part is controlled direct or indirect by the KMT.

The people of Taiwan lack the maturity and the education as to understand their own political situation as a result of decades of government controlled and manipulated information.

It is the responsibility of a countries students and academics, to fight against this situation and to install a democratic constitutional state and a free society.

The revision of the Parade and Assembly Law will be an example how this can be done successfully and might be the beginning of a revision of the whole Taiwanese law and its parts made in a dark time in history

What are the people of Taiwan? Everything. What have they been hitherto in the political order? Nothing. What do they desire? To be something.

In inspiration of Sieyès ‘Qu’est-ce que le tiers état?’

1° Qu'est-ce que le tiers état ? Tout.
2° Qu'a-t-il été jusqu'à présent dans l’ordre politique ? Rien.
3° Que demande-t-il ? À y devenir quelque chose.

The Rock is moving (A new assembly law for Taiwan)

After days of protest, KMT finally announces a timetable for the discussions about a new assembly law:


- November 19th: A first hearing and general discussion will be hold in the Legislative Yuan
- November 27th: the legislature will solicit opinions from experts and keep the public
informed by holding public hearing

So we can observe that the protests have been successful in the sense that the law will finally be changed.

Now the question is in which way will it be changed?
A change might range from a change of the name to a complete new law reaching western standards.

Hopefully some researchers and students of law will analyse several countries assembly laws to present them in the public hearing.



Some Ideas:

I want to present the German law here, as I am most familiar with it and as for example the Taiwanese civil law (like in Korea and Japan) is based on German civil law (they just forgot the democratic parts).

The Constitution:

First of all there is the Constitution as the last bastion of law. In the German case, the first 19 Articles declare the human rights, which are the basis of all laws.
Most Important in the defence of rights are article 1 and 20, which are unchangeable Articles of the constitution:

Article 1
[Human dignity – Human rights –
Legally binding force of basic rights]
(1) Human dignity shall be inviolable. To respect and protect it shall be
the duty of all state authority.
(2) The German people therefore acknowledge inviolable and inalien-
able human rights as the basis of every community, of peace and of justice
in the world.
(3) The following basic rights shall bind the legislature, the executive and
the judiciary as directly applicable law.

Article 20
[Constitutional principles – Right of resistance]
(1) The Federal Republic of Germany is a democratic and social federal
state.
(2) All state authority is derived from the people. It shall be exercised by
the people through elections and other votes and through specific legisla-
tive, executive and judicial bodies.
(3) The legislature shall be bound by the constitutional order, the execu-
tive and the judiciary by law and justice.
(4) All Germans shall have the right to resist any person seeking to abol-
ish this constitutional order, if no other remedy is available.

Article 79
[Amendment of the Basic Law]
(1) This Basic Law may be amended only by a law expressly amending or
supplementing its text. In the case of an international treaty regarding a
peace settlement, the preparation of a peace settlement, or the phasing out
of an occupation regime, or designed to promote the defence of the Fed-
eral Republic, it shall be sufficient, for the purpose of making clear that the
provisions of this Basic Law do not preclude the conclusion and entry into
force of the treaty, to add language to the Basic Law that merely makes this
clarification.
(2) Any such law shall be carried by two thirds of the Members of the
Bundestag and two thirds of the votes of the Bundesrat.
(3) Amendments to this Basic Law affecting the division of the Federa-
tion into Länder, their participation on principle in the legislative process,
or the principles laid down in Articles 1 and 20 shall be inadmissible.


Independent of all other laws, these basic laws are always valid.

Assembly Law:

Now we can come to the right of assembly as given by the 8th Article of the Constitution:

Article 8
[Freedom of assembly]
(1) All Germans shall have the right to assemble peacefully and unarmed
without prior notification or permission.
(2) In the case of outdoor assemblies, this right may be restricted by or
pursuant to a law.

Restricting Laws:

The concrete laws can forbid groups or organizations to participate in demonstrations:

- Persons because of Article 18 of the constitution:

Article 18
[Forfeiture of basic rights]
Whoever abuses the freedom of expression, in particular the freedom of
the press (paragraph (1) of Article 5), the freedom of teaching (paragraph
(3) of Article 5), the freedom of assembly (Article 8), the freedom of as-
sociation (Article 9), the privacy of correspondence, posts and telecommu-
nications (Article 10), the rights of property (Article 14), or the right of
asylum (Article 16 a) in order to combat the free democratic basic order
shall forfeit these basic rights. This forfeiture and its extent shall be de-
clared by the Federal Constitutional Court.


- Parties, which are forbidden by the Constitutional Court (happened the last of two times in
1954 and is extremely difficult) or persons that support this parties.

- Other forbidden Organizations (after laws and the constitution)


Restrictions:

- It is not allowed to have weapons.
- It is not allowed t or uniforms supporting your political opinion.
(It is of course allowed for boy scouts, firemen, …)

Application:

- Organized Demonstrations need to be applied 48 hours at the local administration to give
them time to organize traffic and guarantee safety.

- Spontaneous unorganized demonstrations because of an actual reason can be hold without
application.

Prohibition or disbandment of assemblies:

In general: The normal police laws are not valid during an assembly (as it is a constitutional right). Demonstrations can only be disbanded on basis of the assembly law.

Reasons to disband a demonstration might be:

- There is no application for it (spontaneous demonstrations are excluded from this)
- The specifications on the application were faked
- Violation of a legal conditions for the demonstration
- The assembly is forbidden

Reasons to forbid a demonstration:

- Demonstrations at certain historical locations might be forbidden in general
(at the Memorial to the Murdered Jews of Europe in Berlin for example)

- In a small area around the parliament and the constitutional court, demonstrations are only allowed with an exception.

- Danger for public order and security (for example demonstrations of two enemy groups
at the same time and location)

- Glorification of Nazism or violation of the dignity of victims of Nazism


If the application of demonstrations was denied by the administration, the organizers have the right (as it is a mayor restriction of fundamental rights) of an immediate appellation at an administration court.

Because of the special situation, the constitutional court can declare all decisions of administration courts, restricting the freedom of assembly immediately as invalid.


Synopsis:

- The constitution declares the right of assembly as a fundamental right.
- Spontaneous demonstrations without application are possible.
- Laws can restrict these rights.
- As a restriction of the right to of freedom of assembly is a mayor intervention of the basic
rights, all the decisions are made or can be changed immediately by the constitutional court.


It would be nice, if other people would post other examples of assembly laws, for example in the US or Canada.

The Age of Enlightenment

In a public poll on November 10th, by TVBS, which can be found on the English KMT website and seems to provide the numbers for KMT think tanks strategies, it is stated:

10. Do you support the protest sit-in being held by university students at Liberty Square at the Chiang Kai-shek Memorial Hall?

Support 38%
Do not support 50%
No opinion 11%

So far so good. But what is really worrying are the answers to the following question:

11. Do you know the purpose of the students in this protest sit-in?

Yes 63%
No 37%

Three days after the protest and at a time it was already reported in the media, a day before a man burned himself on liberty square 37% of the Taiwanese did not know the purpose of the protests.

What are the reasons?
One reason might be the media strategy which is mainly based on modern forms of communication that do not reach older or less educated people, like it is possible with printed newspapers that explaining the reasons and goals of the protests and can easily be distributed for example by trade union members in factories or in public transportation.

Another reason might be that the age of enlightenment, which made up the way for the foundation of the United States or the French revolution never really reached Taiwan. People do not think on their own, they are controlled, they want to be controlled.


What is enlightenment? This question was answered in 1784 by Immanuel Kant (in English translation):

Enlightenment is man’s emergence from his self-imposed immaturity. Immaturity is the inability to use one’s understanding without guidance from another. This immaturity is self-imposed when its cause lies not in lack of understanding, but in lack of resolve and courage to use it without guidance from another. Sapere Aude! “Have courage to use your own understanding!” — that is the motto of enlightenment. (more)

Learning Democracy Lessons

An interesting article about the police violence and what politicians think about it: http://www.taipeitimes.com/News/taiwan/archives/2008/11/11/2003428280

Some funny statements:

Liao and Wang denied police had deliberately confiscated Republic of China (ROC) flags.
“It had nothing to do with the flag — it had more to do with whether the people were standing in a restricted area or what they were trying to do,” Wang said.

Mhm, that means that all the international observers and all the media around the world were lying to us. Thanks Mr. Wang for finally telling the world the truth!

“The Police Duties Enforcement Law [警察職權行使法] stipulates that when executing an order, police officers should take the measure that causes the least damage to people’s legal rights,” Chiu said.

They way I thought it should be is that the police should NOT CAUSE ANY DAMAGE to people’s legal rights, but instead DEFEND peoples rights.



People blame now the president, the directors of police, or security bureau to be responsible, but is this really true? Are they really the root of all evil?

Someone might ask why did all this police officers follow the commands, if it seems to be clear that actions were against the laws or even against the constitution?
It should be the responsibility of any police officer in a democracy to check if a command is legal and appropriate to the situation! If not, he has to deny the command and get all possible support by superior commanders for this decision.
But: Do they know what democracy is? Do they know about the constitution? Do they know about freedom of speech?
Do they learn how to defend the constitution and the human rights or do they learn how to follow commands?

It is not enough to call for a new assembly and parade law. Nothing will really change. The way people in the government and the police think has to change. And this can only be done by changing the way policeman are educated and trained.

Maybe even the education in school has to be changed. How many hours are spent in a Taiwanese high school per semester on learning about democracy, human rights, the constitution in Taiwan in comparison to other countries constitutions, the political systems in different countries in the world, the political parties in Taiwan and their history, organization and election campaigns, … ???
I am talking about learning and discussing things, not about remembering facts for some examination to be graded. This issue will be examined and graded in life.

If you read the article, you know this people got good grades in school but did not learn their lesson.