Margaret K. Lewis and Jerome A. Cohen. How Taiwan’s Constitutional Court Reined in Police Power: Lessons for the People’s Republic of China. Fordham Law Review

For over six decades, police in Taiwan could lock up people they deemed “hooligans” (liumang) for years with at most a cursory review by the courts. It was not until Taiwan’s Constitutional Court (the “Court”)—also known as the Grand Justices of the Judicial Yuan—stepped in that important change began to occur, culminating in the ultimate repeal of the law that authorized the police-dominated process. As a result, in 2009, all of Taiwan’s imprisoned liumang who did not have concurrent criminal sentences were released.

The path toward abolition—albeit winding, long, and complex—is a glowing example of the judiciary, executive, and legislature carrying out their respective duties in a democratic, cooperative, and relatively transparent manner. In particular, the often-overlooked Court played an essential role in curbing police power. This Article discusses the detailed process by which judges, officials, and legislators—spurred by civic groups, lawyers and academics—brought about annulment of the relevant legislation, the Act for Eliminating Liumang (檢肅流氓 條例) (The “Liumang Act” or “LMA”). Crucial to this process was a series of Court interpretations, combined with sustained efforts by law reform groups and a gradual realization by the legislative and executive branches that the Liumang Act could no longer be justified as compatible with the values of post- martial-law, democratic Taiwan. The Court’s gradual invalidation of various provisions of the Liumang Act was a necessary, albeit standing alone insufficient, force behind the Act’s ultimate abolition.

Part I of this Article introduces the former legal regime for punishing liumang. Part II takes a step back to explain how the Court functions and the scope of its powers. We address the Court’s initial interpretations regarding the punishment of liumang in Part III, followed in Part IV by a detailed analysis of the final interpretation and the two underlying petitions for constitutional review that stimulated it. Part V charts the Liumang Act’s rapid demise after the Court’s final interpretation.

In Part VI, we look across the strait to consider what lessons Taiwan’s experience has for the People’s Republic of China (“PRC”) now that it has finally abolished its analogous police- imposed punishment system of re-education through labor (“RETL”). Because of the extremely limited role of constitutional interpretation in the PRC, reforms to RETL had to await a purely political solution rather than a judicial decision or even a constitutional interpretation by the Standing Committee of the National People’s Congress, the only PRC institution explicitly authorized to make such an interpretation. The Decision of the Chinese Communist Party’s Central Committee in late 2013 announcing that RETL would be abolished provided the requisite political will to finally end RETL in December 2013. Abolition of RETL is an important milestone in the PRC’s journey to limit unfettered police power. Serious questions remain, however, about alternative punishment systems that are already being used in place of RETL. The issue now is whether the PRC truly took a step towards reining in police powers or merely shifted those powers to different forms of so-called “administrative” punishments” as well as increased application of some of the vaguer provisions of PRC criminal law.