Tue, Dec 16, 2014 - Page 8 News List

Expressing discontent should not be a crime

By Hsu Heng-da 許恒達

In the eyes of many, the government’s record on governance and human rights leaves much to be desired. There have been several cases in which individuals have taken it upon themselves to express this dissatisfaction with the government and authorities through actions such as throwing shoes or books at officials.

In most of these cases, the official involved — the “victim” — at first magnanimously states that they will not pursue the matter further, but then files a criminal charges against the offender. The charges filed in these incidents are for the offense known as “offering a public insult.”

The question is: Does insulting a public official warrant criminal prosecution?

The idea of public insults being a crime has its roots in the Germanic laws of Europe’s medieval period. A common feature of the legal systems used at that time was letting an aggrieved party who felt slighted by verbal abuse or disrespectful behavior from a third party retaliate with a weapon.

Later, the state took responsibility for meting out punishment for criminal offenses and private individuals were dissuaded from taking matters into their own hands. The measures in place at the time were designed to preserve individuals’ right to being accorded due respect. These were eventually codified into European law in the form of the crime of insulting others.

A crucial factor in this development was the preservation of the respect that the aristocracy within feudal societies had come to expect for their positions and titles, and this was feature has been transplanted into Taiwan’s Criminal Code.

Today, Taiwan is not a feudal society and yet the Criminal Code retains this offense — publicly insulting another person — which is more in keeping with that societal structure.

Despite its inclusion, the wording explaining the offense merely touches upon how public or physical insults are to be interpreted. When ruling on cases involving these offenses, judges have tended to debate the social implications of the insult or physical violence in question, and have expounded at great length on whether the words used could be considered disrespectful. Not only is this a waste of valuable judicial resources, the context of the original dispute is often buried under the sheer weight of the legal exposition.

Criminal cases should only be filed as a last resort, and should not be employed lightly to resolve personal disputes. The heaviest sentence possible for the public insult offense is one year in prison and relatively non-serious offenses such as this should really be dealt with through damages and compensation in a civil case.

Another side to this is that the use of insulting words or behavior during the course of interpersonal interaction can occur for very different reasons: Sometimes they are simply meant to shame someone, or express derision toward them, and sometimes they are sparked by justifiable political or social reasons.

For the sake of safeguarding freedom of expression, these latter two types should be identified separately in the law and dealt with differently, but the Criminal Code does not differentiate when it comes to insulting public officials who are carrying out their duties.

The law is clearly in need of reform. It is equally evident that such incidents do not need to be prosecuted as criminal cases at all. When it comes to individuals expressing their discontent with political policies, the offense should not exist at all, it should be struck from the books.

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