During a discouraging, if not desperate, long night in 2014, a large number of citizens stood up to oppose the illegitimate legislative process of a proposed cross-strait service trade agreement, yet the peaceful protest and the exercise of free speech were met with a violent police response.
When the charges against seven protesters were dropped on Oct. 8, it marked the end of a nearly seven-year-long legal battle over the storming of the Executive Yuan during the 2014 Sunflower movement.
Upon taking office in 2016, President Tsai Ing-wen’s (蔡英文) administration withdrew all charges of criminal offenses that are indictable only upon complaint against 126 students who occupied the Executive Yuan.
However, the ligation continued, as 17 people were still charged with the crime of incitement and obstruction of officers under Article 153, Subparagraph 1, and Article 138 of the Criminal Code — which involves compulsory prosecution.
In April last year, the High Court found the 17 defendants guilty, of whom eight appealed to the Supreme Court.
On Jan. 18, the Supreme Court ordered a retrial of the eight and remanded the case to the High Court. At the time, the judges touched upon two major issues, namely the constitutionality of the crime of incitement, as well as the issue of civil disobedience and of the right to resistance.
During the trial, the Supreme Court did not accept the defendants’ proposal to suspend the proceedings by a ruling and petition for a constitutional interpretation. Apparently, there was a missing constitutional moment, although the Supreme Court’s collegiate bench ultimately deemed the proposal constitutional.
Ultimately, the High Court revoked guilty verdicts against seven of the people involved in the occupation of the Executive Yuan, and the charges against them have been dropped.
On the one hand, this decision was in favor of the defendants, but on the other, it constituted a missed opportunity to elevate the issue of “an authoritarian criminal law” — the crime of incitement under Article 153 — to the level of the constitutional court.
No judge took advantage of it in accordance with the Constitutional Interpretation Procedure Act (司法院大法官審理案件法), and neither were the defendants entitled to do so, as the charges against them had been revoked and could not be appealed.
Intriguingly, the case went to trial four times. The defendants were initially found not guilty of incitement, but then guilty in the second ruling, which then was remanded to the High Court by the Supreme Court. Finally, the High Court decided it was a “judgement of case not entertained” based on Article 303, Subparagraph 3, of the Code of Criminal Procedure (刑事訴訟法).
It was a debatable yet inspiring product of deliberation, as the judges earnestly found a delicate balance to address the difficult issues of civil disobedience and the right to resistance.
Awe-inspiring, yet soul-searching — the law has its legitimacy, rigor and predictability.
Courts should judge in accordance with the law and evidence, and in turn the legal system should be improved if there are deficiencies. Above all, the judiciary has capabilities and shortcomings. Through this case, the importance of independent judicial trials could not be clearer.
Even more important is that a ruling can only deal with something that is within the limits of the legal system, criminal law and penalties in individual cases.
Nevertheless, we should ask ourselves: How much fairness and justice in democratic movement can be truly implemented?
Fundamentally, democracy and the legal system are about following law and order, but if we carefully examine the concepts of civil disobedience and of the right to resistance, conscience and beliefs are the foundation of being a responsible citizen. This understanding makes it more understandable when people put into practice their democratic ideas, take to the streets and take affirmative action.
It is perhaps time for society to trace this issue back to its roots in democratic values and civic engagement, which is what the 2014 Sunflower movement was all about.
Huang Yu-zhe is a student at National Chengchi University’s Graduate Institute of Law and Interdisciplinary Studies. Lee Ming-ju is a lawyer at the Judicial Reform Foundation.
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