In the case involving Mr. Zhu Yu-De and related defamation matters, questions have arisen regarding the constitutionality of Article 309 of the Criminal Code, which was cited in 102-Jian-Shang-Zi criminal judgment No. 451 of the Taiwan Kaohsiung District Court. The petitioners have sought a constitutional interpretation. During the oral arguments held today (25th), Commissioner Kao Yung-cheng, who was invited as an expert agency from the National Human Rights Commission (NHRC), provided expert opinion on whether Article 309 of the Criminal Code conflicts with the Constitution, assessed in light of international human rights standards.
The expert opinion of the NHRC, based on the International Covenant on Civil and Political Rights (ICCPR) and the concluding observations and recommendations from the International Review Committee, contends that the criminalization of public insults significantly endangers freedom of expression. This perspective is further supported by General Comment No. 34 on the ICCPR and the Declaration on Ten Key Threats to Freedom of Expression proposed by the United Nations Special Rapporteur, which indicate that imposing excessively severe penalties for such actions raises substantial issues regarding the violation of free speech and and must be placed under stringent review.
The opinion additionally cites Article 10 of the European Convention on Human Rights, which guarantees the right to freedom of expression. In its rulings, the European Court of Human Rights has underscored the necessity for legal provisions to be clearly defined, allowing individuals to reasonably anticipate the outcomes of their actions in particular situations.
Article 309 of the Criminal Code, when applied in insult cases, may result in varying interpretations due to subjective viewpoints and differing cultural contexts, leading to unpredictable standards in judicial decisions. This ambiguity generates uncertainties, making it challenging for individuals to anticipate the legal repercussions of their actions after a court balances its interests. This is inconsistent with the protection of freedom of expression and opinion as outlined in the ICCPR. Commissioner Kao further emphasized that the oral arguments concerning Article 140 of the Criminal Code, which pertains to insults directed at public officials, scheduled for tomorrow (26th), present analogous issues regarding potential infringements of the ICCPR. The NHRC has previously submitted its written opinion to the Constitutional Court on this issue.
Taiwan bears a significant responsibility to uphold its international legal obligations as a prominent democratic nation in the international community. The NHRC urges the government to act on the concluding observations and recommendations provided by the ICCPR by formulating legislation that bans the dissemination of war propaganda and hate speech, in accordance with the tenets of the ICCPR.