With the Constitutional Court Procedure Act (憲法訴訟法) having taken effect on Jan. 4, Taiwan has made significant progress in judicial review. During Taiwan’s democratization process, the legal community has taken the initiative to strengthen the nation’s democracy and rule of law. A new generation of lawyers marked the change, and in turn, society progressed.
Thanks to some Judicial Yuan interpretations — No. 748 (examining the Civil Code excluding same-sex marriage) and No. 791 (regarding the illegality and voluntary dismissal in litigation of adultery), to name a few — Taiwan has become a more progressive and civilized society.
However, some controversial laws remain to be challenged. One of them is slander and defamation — criminal offenses under articles 309 and 310 of the Criminal Code, in which an offender is subject to a fine or up to two years in jail if investigators determine that the offensive statements were publicly disseminated.
In 2000, the Council of Grand Justices’ Interpretation No. 509 ruled that paragraphs 1 and 2 of Article 310 are in line with the intent of Article 23 of the Constitution, as they are designed to protect the legal interests of individuals, and are necessary to prevent interference in the freedom and rights of others.
While it was deemed constitutional, it is generally recognized that this interpretation introduced the “actual malice” principle from the New York Times vs Sullivan in 1964, which says: “The perpetrator must prove by himself that the content of his speech is true in order to be exempted from criminal responsibility. Nevertheless, the perpetrator cannot prove that the content of the speech is true, but based on the evidence provided by himself, if the perpetrator has considerable reasons to believe that it is true, then the criminal responsibility of defamation cannot be held.”
Simply put, it took a friendlier stance toward freedom of speech on the one hand, but was stricter on the constitutionality of defamation.
In 2012, Hsu Tzong-li (許宗力) delivered a lecture at the Judicial Yuan, looking into the question from the perspective of comparable laws.
By describing the legal status of reputation and the protection measures, Hsu explained the intent of Interpretation No. 509 and said that the criminal offense has a chilling effect on freedom of speech in Taiwan and should be decriminalized.
Before decriminalization, according to the principle of legal interpretation in line with the aims of the Constitution, at least in terms of legal effect, the option of a prison sentence should be excluded. As for insulting remarks, guilty verdicts involving foul language inappropriately turned the nation’s courts into those of “folk morality.”
There is a need for examination.
President Tsai Ing-wen (蔡英文) took office in 2016, and the National Congress on Judicial Reform was held in November that year. The fifth sub-committee was also sympathetic to decriminalization.
National Yang Ming Chiao Tung University law professor Lin Chih-chieh (林志潔) took the position that cases related to insult, defamation and slander should be filed with civil courts.
Against this background, an influential reform group comprising 180 prosecutors urged the Legislative Yuan to decriminalize libel and defamation, or for lawmakers to at least consider amending the act to limit the victim of a crime to filing a private prosecution.
Prosecutors are an important national public representative and a common asset of society.
They should put all their efforts into major crimes rather than private disputes.
It is equally, if not more, important that valuable investigative resources should not be squandered, given that judicial personnel have long shouldered an enormous amount of work.
Assuming that the legislature adds the limitation of a private prosecution, the victim of a crime should hire an attorney, prepare the evidence and file a petition with a court having jurisdiction.
In so doing, the limited resources of police investigation and judicial personnel would not be wasted on quarrels that have nothing to do with the public interest.
There have been failed attempts to apply for judicial interpretation by lower-court judges. For instance, in the (107) Hua-Jian-Zi No. 87 rendered by the Hualien District Court, the judge summarized three unconstitutional reasons:
First, Article 309 violated the principle of legal certainty. That is to say, the public could not understand the meaning and legislative aim adopted by the concept of a law.
Second, given that the protection enshrined in Paragraph 2, Article 19 of the International Covenant on Civil and Political Rights and its general comment No. 34, Taiwan’s courts are unable to find a clear and general definition on the word “insult,” which grants unlimited discretion to judges.
Furthermore, the concept of insult might contain constantly changing and overly broad word coverage, which has seriously violated people’s right to freedom of speech under Article 11 of the Constitution.
Third, the judge quoted Article 10 of the European Convention on Human Rights, also together with two cases from the European Court of Human Rights — Murat Vural vs Turkey in 2014 and Doner and Others vs Turkey in 2017 — saying that it also violated Article 23 of the Constitution, namely, the principle of proportionality.
All in all, the judge said that whether a person speaks politely or maliciously is a direct result of a person’s character and cannot be changed by punishment. The best way is through education.
Judges and prosecutors should follow the law, but they can choose to adopt a constitutionally restrictive approach.
To be more precise, only insulting remarks that involve race, religious belief, gender and sexual orientation should be deemed to cause harm to human dignity, and possibly constitute the libel offense.
As for foul language hurting other people’s feelings, it should be a matter of personal cultivation and needs to be improved by education. Protecting somebody’s “fragility” is impossible and should no longer be the task of the nation’s courts.
Huang Yu-zhe is a student at National Chengchi University’s Graduate Institute of Law and Interdisciplinary Studies.
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