The Democratic Progressive Party (DPP) asked the Taipei City Police Department to investigate an online rumor that alleged the general manager of the Formosa Fun Coast (八仙海岸) water park in New Taipei City is a financial supporter of the party.
The police fined the individual behind the message NT$30,000 for violating Item 5 of Article 63 of the Social Order Maintenance Act (SOMA, 社會秩序維護法), which forbids circulating rumors that could unnerve the public.
When news of the fine appeared in newspapers, it elicited a number of reactions. Some questioned whether the content of the message actually amounted to a rumor and whether it was sufficient to undermine public order and peace. Others said the fine was an incursion on freedom of expression. However, what stood out was the virtual absence of challenges to the appropriateness of Article 63 itself.
The way SOMA interferes with the rights of Taiwanese is totally out of touch with human rights in a modern society. Article 63 also allows, in addition to the maximum fine of NT$30,000, for detention of “not more than three days” as an option for a presiding judge.
Although this does require a judge’s ruling, it still means that an individual’s freedom can be taken from them for as long as three days, and it is clearly debatable whether this regulation conforms to the principle of proportionality.
This is especially true since Item 5 of Article 63 sprang almost fully formed from a Martial Law era piece of legislation aimed at maintaining public order and protecting peace — the now-abolished Act Governing the Punishment of Police Offenses (違警罰法) — specifically Clause 1 of Article 54 of that act. After the Council of Grand Justices proclaimed that the legal provisions within the abolished act regarding fines and detention were unconstitutional, the text reappeared in the newly promulgated SOMA with precious few amendments, save for the reduction of the maximum period of detention from seven days to three and the fact that the detention was now put at the discretion of a court.
Nevertheless, the underlying intention behind the legislation — to control society through the police and with absolutely no oversight — remains enshrined within the text of SOMA. In fact, as a result of the council’s constitutional interpretation, many of the regulations within SOMA have now received a high degree of approval. This retrogressive move is not the kind of legislation wanted in a nation that observes human rights.
The kind of social order envisioned in SOMA simply does not conform to the aspirations of transitional justice. Three decades after the end of the Martial Law era, its stipulations, and the punishments and processes that they codify, are thoroughly detrimental to reflection on what is just.
Not only should the nation consider abolishing stipulations of this type, it should also conduct a complete revision of the act, to set Taiwan back on the right path.
Hsu Heng-da is an associate professor at the College of Law at National Chengchi University.
Translated by Paul Cooper
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