The 2014 Sunflower movement marked a major milestone on Taiwan’s road to civil disobedience; it is the duty of conscientious citizens to protest unjust government actions by openly breaking the law to achieve a higher moral aim, while at the same time being willing to face the consequences.
In a constitutional democracy, citizens are endowed with the inherent right of civil resistance, because the state is given sovereign power by the people based on the principle of popular sovereignty.
Citizens are entitled to engage in civil disobedience if a democratic government chooses not to play by the constitutional rules.
In 2014, then-president Ma Ying-jeou’s (馬英九) administration, without complying with democratic rules, intended to arbitrarily finish the legislative process of the Cross-Strait Service and Trade Agreement (CSSTA).
At the time, some would argue that the government was already illegitimate, as the country could not normally function as a representative democracy.
As such, it was the duty of protesters to exercise their legitimate right of resistance, although the legality of occupying the Legislative Yuan and the Executive Yuan was not justified.
Yet on April 28, the High Court, overturning a lower court’s not-guilty verdict, denied that civil disobedience was applicable and found seven Sunflower movement figures guilty of inciting people to storm the Executive Yuan on March 23, 2014.
Then-premier Jiang Yi-huah (江宜樺) praised the ruling, saying: “Justice is usually delayed, but it will come eventually,” while the defendants’ legal team, organized by the Judicial Reform Foundation, slammed it.
“Such a verdict, which failed to investigate new evidence and lacked a sufficient basis of legal facts, was a disgrace to the judiciary in Taiwan,” attorney Yu Po-hsiang (尤伯祥) said.
To deal with the legal basis of this case, the court summarized three points.
First, pursuant to Article 6 of the Assembly and Parade Act (集會遊行法), “unless approved by the competent authority, any assembly or parade shall not be held” in the Executive Yuan or its surroundings.
Second, pursuant to Article 153, Subparagraph 1 of the Criminal Code, “a person who by writing, picture, word of mouth, or other means publicly” incites another to commit an offense, “shall be sentenced to imprisonment for not more than two years, short-term imprisonment, or a fine of not more than [NT$30,0000].”
Third, there are four inadmissible defendants’ arguments, and “the right of resistance and civil disobedience does not apply to affirmative defenses.”
“The concept of civil disobedience is limited to academic discussions; at that time Taiwan’s representative democracy was not dysfunctional; the public could still choose to vote in the next presidential and legislative elections in an attempt to express their dissent; and the storming of the Executive Yuan was not the last resort. Furthermore, judges are not able to create the laws, and our Constitution and laws do not give people the right of resistance or civil disobedience. Therefore, Dennis Wei (魏揚) and others crossed the line of freedom of speech and incited people to commit a crime, which violated the law of incitement,” the ruling said.
The dispute should be divided into two levels:
The first deals with whether civil disobedience constitutes an affirmative defense — a successful argument, which can excuse a defendant from criminal liability.
The lower court recognized its constitution, but not in favor of the application in this case; while the High Court not only denied that it was an affirmative defense, it held that there was no such concept in the law.
Apparently, the High Court failed to understand the concept of civil disobedience. It is not a matter of a judge-made law or an immature concept of laws.
Rather, the protesters exercised their inherent duty to disobey the government by protesting the unjust and illegitimate reviewing process of the CSSTA. The panel of three judges seemed to have dodged the inherent nature of civil disobedience in a constitutional democracy.
Furthermore, it is inconceivable to believe that representative democracy at the time still worked.
The Chinese Nationalist Party (KMT), which held executive and legislative powers, insisted on having its own way, although civil society had raised serious concerns and criticisms from the beginning.
If the protesters did not act immediately to stop the review of CSSTA, it would have been fully backed by the legislative majority of the KMT and greatly harmed the national interest.
Depending on a minority of opposition lawmakers to show their dissent in a normal way or waiting for the next elections to vote against the then-ruling party, as the ruling said, would simply have been unrealistic.
The second level covers the application of the law of incitement.
If the judges denied the concept of resistance, then they were led to believe that the crowd was incited to follow the words of the key activists.
Yet, against the backdrop of the controversy, most of the demonstrators protested of their own free will. After some activists decided to shift the base from the Legislative Yuan to occupy the Executive Yuan, each protester could use their own judgement to decide whether to follow the base.
It is hard to imagine how some key figures were able to incite such a huge crowd of protesters.
By claiming civil disobedience, they must have known they would face consequences, but it is debatable whether the law of incitement under Article 153 of the Criminal Code should have been applied, as it would infringe on the right to free expression in a democratic society.
A review is needed of this controversial legislation, which is “an authoritarian criminal law,” as DPP Legislator Chou Chun-mi (周春米) said.
Using the act of incitement against the fundamental spirit of civil disobedience is not justifiable. Instead, it only shows the ignorance and naivety of the argument.
Practicing civil disobedience is a good start, while the nation still has a long way to go.
The one thing that is certain is that no one can deny the historic meaning of the Sunflower movement, nor can one legal opinion invalidate its valuable lesson for our constitutional democracy.
Huang Yu-zhe is a political science undergraduate at Soochow University and has been accepted to National Chengchi University’s Graduate Institute of Law and Interdisciplinary Studies.
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