Freedom from Arbitrary Detention in Asia: Lessons from China, Taiwan and Hong Kong

Oxford Handbook of Constitutional Law in Asia (David Law, Holning Lau and Alex Schwartz eds., Oxford, Forthcoming)

19 Pages Posted: 26 Nov 2018

See all articles by Yu-Jie Chen

Yu-Jie Chen

Institutum Iurisprudentiae, Academia Sinica

Jerome A. Cohen

New York University School of Law

Date Written: October 15, 2018

Abstract

The power to detain is the power to crush. Freedom from arbitrary detention therefore is one of the most universal protections that international human rights norms and domestic constitutions seek to guarantee. This chapter compares these protections across three jurisdictions—the People's Republic of China (China or the PRC), the Republic of China on Taiwan (ROC or Taiwan), and the PRC's Special Administrative Region of Hong Kong (Hong Kong). Because they share close ethnic, cultural, geographical, and economic ties, they are often referred to as "Greater China." They all have constitutional protections against arbitrary detention. Taiwan and Hong Kong have also incorporated the International Covenant on Civil and Political Rights, which the PRC has signed but never ratified, into their domestic law.

Yet their practices differ vastly. The rampant resort to unlawful and arbitrary detention in China paints a sobering picture of how law on the books can remain an empty promise. Taiwan and Hong Kong, on the other hand, have made significant strides in limiting arbitrary detention. Their experiences provide valuable insights into how government detention powers can be satisfactorily restrained. This chapter contrasts the current abuses in China with the significant checks on arbitrary detention in Taiwan and even in Hong Kong, despite occasional mysterious kidnappings by PRC agents there. Such checks highlight the importance of meaningful legal institutions and mechanisms—in particular, the judiciary—to give life to the protections of personal freedom enshrined in international and constitutional law.

Keywords: Detention, Constitutional Law, Human Rights, Courts, China, Taiwan, Hong Kong

Suggested Citation

Chen, Yu-Jie and Cohen, Jerome A., Freedom from Arbitrary Detention in Asia: Lessons from China, Taiwan and Hong Kong (October 15, 2018). Oxford Handbook of Constitutional Law in Asia (David Law, Holning Lau and Alex Schwartz eds., Oxford, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3275169

Yu-Jie Chen (Contact Author)

Institutum Iurisprudentiae, Academia Sinica ( email )

128 Academia Sinica Rd., Sec. 2
Nankang
Taipei City, 11529
Taiwan

HOME PAGE: http://www.iias.sinica.edu.tw/en

Jerome A. Cohen

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6169 (Phone)
212-995-3662 (Fax)

HOME PAGE: http://its.law.nyu.edu/faculty/profiles/index.cfm?fuseaction=cv.main&personID=19840

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