Still Unable to See a Judge in the End

Today marks the implementation of the newly amended Habeas Corpus Act. When this legislation—touted as providing immediate protection for personal freedom—was passed, the Criminal Department of the Judicial Yuan emphasized that as long as a person is arrested or detained by any authority other than a court, including arrests by police and prosecutors for investigating crimes, simply stating "I want to see a judge" triggers the Habeas Corpus Act, allowing the individual to appear before a judge who will review the legality of the arrest or detention. Even a public-spirited third party with no personal connection may file such a petition.

Putting aside whether the new law disregards the 24-hour constitutional limit on detention under Article 8 of the Constitution—by improperly extending the restriction of personal freedom to 48 or 72 hours through time limits set for detention petitions, judicial warrants, and transfer to a judge for review, thereby inviting constitutional controversies—the interpretation and application of the former Habeas Corpus Act were not strictly limited to criminal suspects either. However, past judicial practice ignored the requirement of judicial reservation under Article 8 of the Constitution, unconstitutionally restricting the Habeas Corpus Act to apply only to those arrested or detained "on suspicion of a crime." This caused cases not involving criminal suspicion—such as the detention of illegally resident foreigners, compulsory hospitalization for mental illness, or emergency placement of children and juveniles—to be summarily dismissed by criminal court judges whenever a writ of habeas corpus was petitioned, creating a major loophole in the constitutional protection of personal freedom. Surprisingly, Judicial Yuan Interpretation No. 708 failed to correct this unconstitutional application of the law by judges.

Ironically, Article 1 of the newly amended Habeas Corpus Act merely altered the punctuation of the old law without making any textual changes, yet the Judicial Yuan claimed that the new Habeas Corpus Act applies even to arrests made on suspicion of a crime. Recently, the Judicial Yuan announced its administrative case-allocation rules, stipulating that habeas corpus petitions for criminal suspects will be tried by criminal courts, while habeas corpus petitions for non-suspects will be distributed across civil, juvenile, and administrative litigation courts based on the nature of the applicable regulations, meaning "everyone gets a prize."

Refusal to Establish Specialized Courts for Compulsory Dispositions

The problem, however, is this: How are a detained person petitioning for habeas corpus or a public-spirited third party to know which legal provision the detaining authority relied upon to make the arrest? When a court accepts a petition, how can the case-allocation personnel make a "correct" assignment? Although paragraph 1 of the Judicial Yuan's administrative case-allocation rules contains a supplementary provision stating that "cases whose nature cannot be objectively determined shall be accepted by the criminal court," this does not prohibit the criminal court, after accepting the case, from transferring it to another court upon determining that the detention is not based on criminal suspicion.

A simple example: An illegal foreign worker is apprehended by the police and taken to the police station. The employer then discovers that the worker is suspected of theft and files a complaint, prompting the worker to petition for habeas corpus. When a case simultaneously involves both non-suspect and suspect arrest and detention, should the court assign it to a criminal court judge or an administrative litigation court judge? Let alone a third party who merely witnesses police making an arrest on the side of the road and files for habeas corpus—how is the court to determine the legal nature of the case for assignment purposes? Petitioners care about seeing a "judge" to uphold justice, regardless of which specific judge it is. Premised on judges nitpicking the correctness of case allocation, habeas corpus petitions are bounced around among various court divisions. Even after going through the cycle, it remains difficult to clarify which judge ought to review the case. The detainee either spends the better part of a day stuck inside the detaining authority's facilities or has already entered the primary merits proceedings. At this point, the court gladly dismisses the petition pursuant to Article 5 on the grounds that review no longer serves a practical purpose. The ultimate result may well be that "I want to see a judge" turns into "seeing no judge at all."

The core issue remains the Judicial Yuan's unwillingness to implement "Specialized Courts for Compulsory Dispositions," an essential complementary system that should have been instituted well over a decade ago. Only by establishing specialized courts for review can controversies over which division should handle a citizen's habeas corpus petition be avoided. Furthermore, the review of other criminal compulsory dispositions—such as detentions, searches, and the newly implemented wiretapping system that the Ministry of Justice pushed through just days ago—can then be subjected to unified and clear standards. This would prevent a situation where every judge on duty for a day sings a different tune, leaving the police and prosecutors at a loss, and making the protection of citizens' rights dependent on how diligently they pray or burn incense on ordinary days. The Judicial Yuan's persistent refusal to consider the feasibility of specialized courts for compulsory dispositions is the root cause why the good intentions behind the "judicial reservation" principle—including the new habeas corpus system—are destined to be reduced to mere formalities, failing to function effectively.