Habeas Corpus: Testing Judges' Resolve to "Grow Up"

The Habeas Corpus Act has come into effect. The Judicial Yuan is jubilant, holding a high-profile press conference to celebrate a "giant leap for human rights" while aggressively broadcasting the "magic password": "I want to see a judge!" It is as if uttering this wondrous incantation could make all rampant violations of personal liberty simply "vanish"!

In the first few days of the new law's implementation, several media friends coincidentally asked: "When someone is arrested, should they demand to see a lawyer or a judge?" For a moment, I was struck dumb, unsure how to respond, thinking that this way of framing the question didn't quite hit the mark. Upon closer reflection, this is actually a very wise and piercing question: with all the legal amendments in the world, is seeing a judge of any use?

The Problem Lies with Judges, Not the Law

The Judicial Yuan generously admitted in its legislative amendment reasoning that since the Habeas Corpus Act took effect in 1946, it has been ineffective because judges adopted an extremely restrictive interpretation: unless someone is arrested and detained for a "crime," the Habeas Corpus Act cannot apply. In other words, as long as it is not a "criminal" case, even if someone is locked up until they die, it is none of the court's business.

From this perspective, amending the Habeas Corpus Act is redundant, because the problem is not the law, but the judges. If judges genuinely wanted to address the problem of arbitrary arrests, the old Habeas Corpus Act would have long sufficed. In fact, comparing the new and old laws, Article 1 outlines the requirements for habeas corpus; apart from the addition of a punctuation mark, the wording has not changed at all. Why is it possible now, but not in the past?

This question is not difficult to answer. Back in the authoritarian era, the judiciary was merely an appendage of politics. The executive branch, under the guise of martial law, massively infringed upon human rights. The Taiwan Garrison Command suppressed freedom of speech through interrogations, disappearances, and indefinite detentions, trampling extensively and broadly upon personal liberty. The judiciary did not dare to utter a peep. All talk of the separation of powers or the Five-Power Constitution was merely empty talk and lies.

Habeas Corpus Allows the Judiciary to "Grow Up"

A customary judicial culture naturally lacked the tradition of challenging the executive branch. It was thoroughly unfamiliar with the "habeas corpus system," even viewing it as a monstrous flood or ferocious beast, and feared the very idea and practice of opposing or checking the executive branch. When everything is decided by executive agencies—regardless of whether it is lawful, constitutional, or reasonable—the judicial system willingly relegated itself to a subordinate role, providing endless endorsements.

In fact, habeas corpus is the institution that can best manifest the dignity and standing of the judiciary. When people face threats to their lives and liberty, they are willing to place themselves in the judgment of judges and request judicial intervention, which demonstrates the public's trust in judges. If judges also reject the decisions of executive agencies, it further demonstrates that the judicial power is not a mere branch of the executive power, but an independent "grown-up" capable of holding its own against it.

Of course, the amended Habeas Corpus Act is indeed more comprehensive, and there is no need to constantly criticize the painstaking efforts of the Judicial Yuan. However, if corresponding measures are not properly implemented, if software and hardware equipment are not matched, and if judges' workloads are not adjusted, whether or not to confront the executive branch will merely be reduced to the "conscience business" of individual judges, and the good intentions of the fine law will be greatly compromised.

Seeing Mountains as Mountains Again

The design of every institutional function is meant to counter human flaws or weaknesses, and the judicial system is no exception. If we genuinely want to protect human rights, we must make it smoother and more comfortable for judges and the public to apply the laws and systems of habeas corpus, rather than hobbling them at every turn.

First, the proviso in paragraph 1 of Article 1 of the Habeas Corpus Act—"provided that where other laws prescribe that an application may be made for immediate judicial review, such provisions shall govern"—if mishandled in practice, could cause citizens to be treated like a "soccer ball" being kicked around. For instance, the detention of a foreigner might simultaneously involve the Administrative Litigation Act and the Code of Criminal Procedure, leading to them being bounced back and forth between administrative courts and criminal courts.

At this point, courts should follow the concept of a "single-window service": whichever window accepts the case should review it. The phrase "pursuant to its provisions" merely indicates that the regulations applicable to a judge in an individual case may vary; it does not necessarily mean that "administrative cases can only be tried in administrative divisions and criminal cases only in criminal divisions," which is necessary to prevent cases from "wandering" between different courtrooms. This is akin to an incidental civil action in a criminal proceeding, which in principle is handled directly by a "criminal division" judge who issues a "civil" judgment, without necessarily requiring transfer to a civil division.

Secondly, the Judicial Yuan should endeavor to ensure that "video habeas corpus" under paragraph 2 of Article 7 of the Habeas Corpus Act remains an extreme exception, lest the habeas corpus system be reduced to an illusion. Habeas corpus, as the name implies, means to "bring the body" out for "trial"; direct trial and oral hearings are fundamental principles, and the principle must not become the exception. Insufficient resources, inadequate manpower, and incomplete supporting measures cannot be excuses if one genuinely cares about personal liberty.

Finally, after the Judicial Yuan completes its complementary legal amendments, allocates personnel, and sets up courtrooms, what remains is still a question of judges' courage and resolve. Given the current social reality in our country, those most vulnerable to arbitrary arrest by executive agencies are blue-collar foreigners, whom the National Immigration Agency routinely subjects to long-term detention. This is why Judicial Yuan Interpretation No. 708 declared certain provisions of the Immigration Act regarding detention to be unconstitutional and invalidated them within two years.

The problem is: during this "legal vacuum period" after the new Habeas Corpus Act is implemented but before the old Immigration Act becomes invalid, should judges "grant habeas corpus" and apply the intent of Interpretation No. 708 to "refuse to apply" the old Immigration Act? Or should they "grant habeas corpus" and apply the old Immigration Act which is "formally not yet invalid"? Or should they "not even bother with habeas corpus at all"? Every choice tests judges' courage to confront the executive branch and their resolve to defend personal liberty.

Taking the rulings of the New Taipei District Court (103 Xing Ti Zi No. 1) and the Taoyuan District Court (103 Xing Ti Zi No. 1) as examples, although the applicants were the same, the judge of the New Taipei District Court "recognized the Immigration Act as formally not yet invalid" and dismissed the habeas corpus application, whereas the judge of the Taoyuan District Court "refused to apply the law that, although not yet invalid, had already been declared unconstitutional" and ordered the person released.

Overall, under the exact same legal order, there are two completely different interpretations, both of which are formally lawful. Thus, the problem returns to that initial starting point: "Is seeing a judge of any use?"

Perhaps this question can only be annotated thusly: the day when a person, upon being arrested, thinks of "finding a judge first, and a lawyer second" is the day the judicial power truly becomes independent and wins the respect and trust of the people.