COR Point 61 Administration of Justice (Articles 9, 10 and 14)
We affirm the actions during the past two years taken by the MOI, the Mainland Affairs Council and the Judicial Yuan in response to interpretations by the Constitutional Court and the Concluding Observations and Recommendations of the Experts of submitting and securing legislative approval for important revisions to the Immigration Act and the Act Governing Relations between the People of the Taiwan Area and the Mainland Area, both effective July 2015, and the Habeas Corpus Act. The first two bills of revisions require that any restriction of the physical freedom of foreign citizens or their detention be in accord with the principle of the retention by a judge (See Paragraphs 212-215 of the State Report Response to the Concluding Observations and Recommendations). The Judicial Yuan’s revised Habeus Corpus Act takes a further step in allowing persons whose physical freedom is restricted for non-criminal cases to gain opportunity for judicial review by filing a writ of habeus corpus. However, an analysis of cases of habeus corpus conducted by civil society human rights organizations showed that many courts simply wanted to ensure the legitimacy of the trial process and refused to substantively examine the necessity for detention.128 This state of affairs is not in keeping with the requirement of Recommendation 61 that courts must have the power to “decide whether the detention is lawful.”
The procedure for mandatory hospitalization for gravely ill patients in the Mental Health Act129 also constitutes a situation in which the personal freedom of an individual is abrogated. However, the protections for severely ill patients who are subjected to mandatory hospitalization are still quite limited in terms of both the law itself and implementation. Article 42 of the Mental Health Act allows affected persons to petition courts to end mandatory hospitalization as a remedial channel. for remedial assistance, but, in fact, patients who are locked up in mental health institutions are subject to intense control and restrictions if they seek external assistance such as asking a legal aid lawyer for assistance. Therefore, it is almost impossible for affected persons to gain access to this remedial procedure. Even if he or she is finally able to file an petition to the court, the ratio of court decisions to halt mandatory hospitalization is extremely low.
Moreover, the Mental Health Act provision for petitions to end mandatory hospitalization are only applicable to after-the-fact review procedures to determine whether there is a need to continue mandatory hospitalization. As far as the decisions of the MOHW Mental Illness Mandatory Assessment and Community Treatment Review Committee are concerned, there are as yet no judicial review procedures unless the person affected files a habeus corpus petition.
Similarly, while the person subjected to mandatory hospitalization can file a petition to the court, it is difficult to exercise this right given the intense control exerted over patients in mental health institutions. Although the Legal Aid Foundation has a “I Want to See a Judge” habeus corpus project that can assist any needful person, its qualifications for review are excessively stringent. Affected persons need to wait until the court issues a habeus corpus writ before the legal aid project can provide assistance. Since persons who are subjected to mandatory hospitalization have difficulty seeking for help from the outside world, it would not be a simple matter to apply for a writ of habeus corpus with legal assistance. Even if the person concerned was finally able to succeed in submitting a petition for a writ of habeus corpus and the petition was able to make it into a court for review, the reality is that as of the present the number of successful applications for petitions for writs of habeus corpus filed by persons subjected to mandatory hospitalization is zero.
In terms of the legal dimension, we recommend that the Mental Health Act should be revised in accord with the principle of reservation by the judges and the spirit of the interpretations by the Constitutional Court and the Conclusions and Recommendations by the Experts. In practice, the MOHW and concerned mental health institutions should not use medical care as a pretext to restrict the fundamental rights of communication and to seek legal counsel or other assistance of severely ill patients.
- See the news release of a news conference to review implementation of the revised Habeus Corpus Act held on January 6, 2015 (in Chinese): http://ppt.cc/EtgIo. The Habeus Corpus Act had been revised in January 8, 2014 and took effect in July 2015. An English translation is available here: http://law.moj.gov.tw/Eng/LawClass/LawHistory.aspx?PCode=C0010008.
- See http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=L0020030.