During its deliberation of a criminal case involving the obstruction of a public official in their discharge of duties, the Taiwan Changhua District Court requested the Constitutional Court’s interpretation of whether Article 140 (insulting a public official) of the Criminal Code is unconstitutional.
Based on General Comment No. 34 on the International Covenant on Civil and Political Rights (ICCPR) and Article 10 of the European Convention on Human Rights (ECHR), the National Human Rights Commission (NHRC) believes that criminal charges associated with insulting a public official may be detrimental to freedom of speech. From the standpoint of protecting the authority of the state and the honor of civil servants, such criminal charges might appear to be consistent with Article 11 (freedom of speech) of the Constitution. However, if the bringing of such charges involves a failure to weigh whether the defendant’s speech should be protected under the principles of free speech, or the imposition of excessive penalties that violate the principle of proportionality, then the charges can hardly be seen as being consistent with the Constitution.
Furthermore, the NHRC highlights the lack of objective criteria for determining whether certain acts constitute a violation of Article 140 of the Criminal Code; as a result, each judge may have a different interpretation and understanding of “insults” depending on their subjective feelings and cultural context. This uncertainty regarding possible criminal punishment is inconsistent with the ICCPR’s guidelines on the protection of free speech.