The Chinese Nationalist Party’s (KMT) proposal to impose penalties for contempt of the legislature has attracted the most attention in the push for legislative reform. However, the current draft, even if it does not contravene the separation of powers, still fails to comply with the principle of legal certainty.
In the draft, the KMT proposed that an official who makes a false statement or falsifies information in a legislative inquiry hearing could be sentenced to imprisonment of up to three years, detention or a fine of up to NT$20,000.
The first problem is that no provision about legislative inquiry hearings is given in the Act Governing the Legislative Yuan’s Power (立法院職權行使法), which only deals with public hearings. Therefore, it is necessary to first establish the procedure for the hearings. Public hearings, which are only loosely regulated, are only to collect opinions from citizens and officials. Officials are not obliged to act on the resolution of a public hearing.
A legislative inquiry hearing, on the other hand, because its resolutions are legally binding, must have its target and scope of the application specified, and parties must be notified to attend. Before anyone makes a statement, they should be informed of their rights and the legal consequences of false statements, and the hearing should comply with the requirements of due process.
Therefore, if the rules for Legislative Yuan hearings are merely a slightly modified version of those for public hearing, the proposed contempt regulations would fall short of the required standards. People who make statements would bear an inappropriate burden of criminal responsibility.
Furthermore, the legal concepts of false statements and falsification of information are uncertain, which makes the scope of this offense unclear. If a legislator believes that an official has made a false statement, the legislator would have to report it to prosecutors anyway. Regardless of whether the official is prosecuted, the process would be criticized as politically motivated, dragging an objective and neutral prosecutor into political turmoil of constant disputes.
Another problem is the so-called falsification of information. Not only is its definition unclear, but compared to the punishment for forging or altering a public document under Article 211 of the Criminal Code, which carries a statutory prison term of between one and seven years, the penalty for falsification of information in the draft bill is less than three years. This is essentially preferential treatment, which makes no sense at all.
In addition, the draft bill proposes that an administrative official who conceals or makes a false statement during a questioning session of the Legislative Yuan could be sentenced to imprisonment of up to one year, detention or a fine of up to NT$100,000. If an official continues the counter-questioning after being halted by the chairperson they could be sentenced to up to six months in prison, detention or a fine of up to NT$15,000.
Although it could be justified if the case involves state secrets or a criminal investigation, it is difficult to specify this exception in the law.
Worse still, it is difficult to draw a clear line as to whether an official is answering or counter-questioning. If the politically elected legislative speaker is ultimately the sole judge of the matter, it would be confusing whether their decision is a fair and impartial judgement.
If legislation is enacted in haste and without regard to clarity, it would be another bitter example of the misguided belief that imposing punishment can solve all problems.
Wu Ching-chin is a professor and chair of Aletheia University’s Department of Law.
Translated by Lin Lee-kai
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