On Tuesday last week, the Legislative Yuan passed the third reading of amendments aimed at updating Article 141 of the Criminal Code.
The revised bill — forced through by the Chinese Nationalist Party (KMT) and the Taiwan People’s Party (TPP) — stipulates that public servants who make false statements during hearings or questioning about important matters of which they have knowledge can face up to one year in prison and fines as high as NT$200,000.
Based on Constitutional Court rulings, the amended article is unconstitutional.
According to Constitutional Court Judgement No. 113 Hsien-Pan-5 regarding the offense of insulting public servants or their official duties, actions that constitute contempt of the legislature fall under the scope of speech that criticizes the actions taken by officials in the course of carrying out their duties rather than the officials themselves.
The judgement is similar to Article 140 of the Criminal Code regulating insults to public servants, whereby a “person who insults a public official during the discharge of his legal duties or publicly make[s] insults about his discharge of such legal duties shall be sentenced to imprisonment for not more than one year, short-term imprisonment, or a fine of not more than one hundred thousand New Taiwan Dollars.”
Constitutional Court Judgement No. 113 Hsien-Pan-5 further states that a provision conflicting with the constitutional guarantee of freedom of speech must undergo “strict scrutiny” — a judicial review method used by courts to determine the constitutionality of laws. To pass the scrutiny test and be classified as constitutional, a law must be indispensable and use the least restrictive means possible, and the legislative intent must be in pursuit of compelling public interest.
The “contempt of the legislature” bill should be modeled after the US legal system, in which its “contempt of Congress” is based upon “contempt of court” regulations.
Taiwan has its own equivalent law on the principle of contempt of court. Article 95 of Taiwan’s Court Organization Act (法院組織法) states that anyone “who violates orders, issued by the presiding judge, commissioned judge, or assigned judge, to maintain courtroom order, which lead to obstructing courtroom proceedings, and refuses to comply after being warned, shall receive a maximum penalty of 3 months’ imprisonment, detention or a maximum fine of NT$30,000.”
Under constitutional review standards, for someone to be prosecuted for contempt of court, they must have contravened an order, caused an obstruction to courtroom proceedings and refused to comply after being cautioned.
By contrast, the revised bill proposed by the KMT and TPP defines contempt of the legislature with a single criterion: providing a false statement during hearings or questioning in the Legislative Yuan. The overly broad scope for punishment raises concerns about the constitutionality of the amendments.
The Legislative Yuan has the duty to proactively carry out investigations.
It is thus unlikely that the amendments regarding contempt of the legislature would pass the scrutiny test, as imposing a criminal penalty does not seem to be “indispensable” or the “least restrictive” means possible to achieve a compelling state interest.
Furthermore, contempt of court is an outdated concept rooted in monarchical-era legal thought. Outdated and unconstitutional, the relevance of the offense of contempt should be reconsidered in Taiwan.
Hu Tien-tzu is a senior enforcement officer at the Changhua branch of the Ministry of Justice’s Administrative Enforcement Agency.
Translated by Gabrielle Killick
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