By Huang Yu-zhe and Lee Ming-ju 李明 洳
During a long, discouraging, if not desperate, night in 2014, a large number of citizens stood up to oppose the illegitimate legislative process of a draft cross-strait trade in services agreement, but the peaceful demonstration and the exercise of freedom of expression met with a violent response from the police.
When the charges against seven protesters were dropped on October 8, it marked the end of a nearly seven-year legal battle over the storming of the Executive Yuan during the Sunflower movement of 2014.
Upon taking office in 2016, the administration of President Tsai Ing-wen (蔡英文) withdrew all charges of criminal offenses that can only be prosecuted on complaint against 126 students who occupied the Executive Yuan.
However, the ligature continued, as 17 people were still charged with the crime of inciting and obstructing the conduct of officers under article 153, paragraph 1, and article 138 of the Criminal Code. – which involves compulsory prosecution.
In April last year, the High Court found all 17 defendants guilty, eight of whom appealed to the Supreme Court.
On January 18, the Supreme Court ordered a new trial of the eight and referred the case back to the High Court. At the time, the judges addressed two major issues, namely the constitutionality of the crime of incitement, as well as the issue of civil disobedience and the right to resistance.
During the trial, the Supreme Court did not accept the defendants’ proposal to stay the proceedings with a judgment and a request for constitutional interpretation. Apparently, a constitutional moment was missing, although the collegiate bench of the Supreme Court ultimately ruled the proposal constitutional.
Ultimately, the High Court overturned the guilty verdicts against seven of those involved in the occupation of the Executive Yuan, and the charges against them were dropped.
On the one hand, this decision was in favor of the defendants, but on the other hand, it was a missed opportunity to raise the question of an “authoritarian criminal law” – the crime of incitement within the meaning of Article 153. – to the rank of constitutional law. to research.
No judge took advantage of it under the Constitutional Interpretation Procedure Act (司法院 大法官 審理 案件 法), nor were the defendants allowed to do so, as the charges against them were canceled and without appeal.
Oddly enough, the case has been tried four times. The defendants were first found not guilty of incitement, but then guilty in the second judgment, which was then referred to the High Court by the Supreme Court. Finally, the High Court ruled that this was an “unheard case judgment” on the basis of Article 303, paragraph 3, of the Code of Criminal Procedure (刑事訴訟法).
It was a questionable but inspiring product of deliberation, as the judges seriously struck a delicate balance in addressing the difficult issues of civil disobedience and the right to resistance.
Impressive, but intriguing – the law has its legitimacy, its rigor and its predictability.
Courts should judge according to the law and evidence, and in turn, the legal system should be improved if there are gaps. Above all, the judiciary has capacities and shortcomings. Through this case, the importance of independent judicial trials could not be clearer.
What is even more important is that a decision can only deal with something that falls within the limits of the legal system, criminal law and sanctions in individual cases.
Nonetheless, we must ask ourselves: to what extent can fairness and justice in the democratic movement be really implemented?
Fundamentally, democracy and the legal system is about obeying law and order, but if we carefully consider the concepts of civil disobedience and the right to resistance, conscience and beliefs are the foundation of a responsible citizen. This understanding makes it more understandable when people put their democratic ideas into practice, take to the streets and take positive action.
Perhaps it is time for society to trace this issue back to its roots in democratic values and civic engagement, which was the goal of the Sunflower movement of 2014.
Huang Yu-zhe is a student at the Graduate Institute of Law and Interdisciplinary Studies at National Chengchi University. Lee Ming-ju is a lawyer with the Judicial Reform Foundation.
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