Democratic Progressive Party (DPP) Legislator Chen Chi-mai (陳其邁) recently proposed an amendment to the Criminal Code to scrap articles that criminalize insults to public offices or personnel, and damage to the Republic of China (ROC) flag, saying such contentious regulations should not exist in a democratic country that touts its freedom of speech.
People’s right to freedom of expression is protected by both the ROC Constitution and two international human rights covenants — the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights — and all of the government’s actions should be subject to public scrutiny, Chen said.
“However, the criminalization of affronting public agencies as stipulated by the Criminal Code entitles the government to seek legal actions against the people at will, which deters people from speaking freely,” Chen said, adding such clauses should not exist in a democratic nation like Taiwan.
Calling for the removal of articles 140, 141 and 160 of the Criminal Code, Chen’s draft passed the first reading in the legislature on Friday and is due to be reviewed by legislative committees.
Chen’s proposal came on the heels of a number of cases involving political commentators and pro-localization activists who became embroiled in legal wrangling for either criticizing government agencies or damaging the ROC flag.
In June last year, former Talking Show host Cheng Hung-yi (鄭弘儀) and several regular guests on the now-suspended popular political TV talk show were taken to court by Miaoli County Commissioner Liu Cheng-hung (劉政鴻) on charges of defamation, public insults and affronting a public office after criticizing the Miaoli County Government’s controversial seizure in 2010 of a large swath of farmland in the county’s Dapu Borough (大埔) of Jhunan Township (竹南).
Among the list of defendants were veteran journalists Ho Po-wen (何博文), Wu Kuo-tung (吳國棟) and Chung Nien-huang (鍾年晃), as well as Soochow University professor Hsu Yung-ming (徐永明), all of whom were found not guilty.
In October 2010, the convener of the 908 Taiwan Republic Campaign, Peter Wang (王獻極), was given a 50-day sentence after burning a ROC flag the year before in protest against President Ma Ying-jeou’s (馬英九) administration.
However, a constitutional interpretation by the Council of Grand Justices, which was released in October at the request of Wang, dismissed his case, saying the guilty verdict against Wang ran counter to constitutional interpretations No. 445 and 644 and thus constituted a violation of the Constitution.
Citing a two-level theory on protecting freedom of speech, the two aforementioned constitutional interpretations stated that as political speech was classified as “high-value speech” that should receive a full measure of constitutional protection and require strict scrutiny for any anti-speech restriction, Chen said.
A nation must not put any restrictions on such rhetoric unless it concerned pressing national interests, Chen added.
In addition, Chen said that the US Supreme Court had also ruled defendants not guilty in two cases of flag-burning in the 1980s and 1990s respectively and found conviction of flag desecration to be unconstitutional.
“It is a step backward for Taiwan’s Council of Grand Justices to forbid the promotion of communism or division of the national territory, but not to address the controversy over the criminalization of damaging national flags,” Chen said.
“How could commenting on political affairs, criticizing the government or damaging the national flags pose any immediate danger?” Chen asked. “Especially when the country already has laws to handle cases of overstated criticism or personal attacks.”
Academia Sinica’s legal researcher Fort Liao (廖福特) said it was bizarre for the government to add public offices to a list of targets protected from defamation and that only slanderous remarks targeting an individual should be dealt with in the court.