During a scuffle between lawmakers in the Legislative Yuan’s main chamber, a portrait of Republic of China (ROC) founder Sun Yat-sen (孫中山) was damaged by a cup of water thrown by a Chinese Nationalist Party (KMT) legislator. According to customary practice, the legislature may ask the KMT for compensation.
The misconduct not only involves compensation under civil law, but also pertains to Article 160 of the Criminal Code, which states that “a person who with purpose to insult the founder the Republic of China, Dr Sun Yat-sen, openly damages, removes, or dishonors his portrait” is subject to imprisonment for not more than one year.
According to Article 160, “a person who with purpose to insult the Republic of China openly damages, removes, or dishonors the emblem of the Republic of China or the flag of the Republic of China shall be sentenced to imprisonment for not more than one year, short-term imprisonment, or a fine of not more than nine thousand dollars. A person who with purpose to insult the founder of the Republic of China, Dr Sun Yat-sen, openly damages, removes, or dishonors his portrait shall be subject to the same punishment.”
Since the KMT legislator inflicted damage to the portrait, will the state charge the legislator with one-year imprisonment?
What the legislature should do is to abolish Article 160, which would not only offer a “solution” to the KMT legislator, but would further ensure freedom of speech in Taiwan’s democratic society. In democratic countries, if citizens dishonor the national flag, the nation’s founder or any political emblem to express their discontent, they would not be committing any violation, because they are under the protection of the Constitution to engage in symbolic speech.
According to Interpretation Nos. 445 and 644 of the former Council of Grand Justices, the state should do its best to protect citizens’ right to political speech. In other words, democratic countries should not use the law to restrain citizens’ right to symbolic speech, such as dishonoring the national flag or portrait of the founder.
In the case Texas v. Johnson, 491 US 397 (1989), the US Supreme Court ruled that flag burning constitutes a form of symbolic speech that is protected by the First Amendment. In United States v. Eichman, 496 US 310 (1990), the US Supreme Court struck down the Flag Protection Act of 1989 on First Amendment grounds, reaffirming its ruling in Texas v. Johnson, which invalidated a Texas flag desecration statute.
Taiwan’s Article 160 is apparently outdated, 30 years behind the US. It is high time lawmakers repealed the statute; I am sure the KMT legislator in question would offer their wholehearted support to that motion.
Huang Di-ying is a lawyer and chairman of the Taiwan Forever Association.
Translated by Rita Wang
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