17 Nov 2008

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
(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
(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)


- 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, …)


- 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

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.


- 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.

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