Statement on Grand Justices' Interpretation No. 623: Article 29 of the Child and Youth Sexual Transaction Prevention Act

Today, the Grand Justices issued a "restrictive interpretation" upholding the "constitutionality" of Article 29 of the Child and Youth Sexual Transaction Prevention Act, which prescribes a fixed-term imprisonment of up to five years for anyone who "uses advertising media, publications, broadcasting, television, electronic signals, computer networks, or other media to disseminate, broadcast, or publish messages sufficient to induce, mediate, imply, or otherwise promote sexual transactions involving individuals." As this interpretation has a profound impact on society, JRF hereby issues the following statement:

First, the majority of the Grand Justices are deceiving themselves and others. Since Interpretation No. 617, the Grand Justices have been well aware that social attitudes have opened up significantly, and that society is largely tolerant and inclusive of diverse information regarding erotic publications and sexual transactions. Both Article 235 of the Criminal Code and Article 29 of the Child and Youth Sexual Transaction Prevention Act are "outdated" laws. Since the interpretation intends to "restrictively interpret" them, the parts that are "restrictively interpreted" should ideally have been declared "unconstitutional." For this interpretation to adopt such a "hypocritical" and "evasive" approach—does the majority truly believe that pointing out the unconstitutionality of certain legal provisions would lead to the "collapse" of our legal order? Such "insistence" by the majority of the Grand Justices is truly baffling. The dissenting Grand Justices also expressed significant criticism.

Second, the majority of the Grand Justices are blind to reality. Much like the reasons why the public applied for "Interpretation No. 617," in "social reality," operators of erotic publications are frequently harassed for no reason by police officers driven by "performance quotas." The same applies to ordinary citizens in this interpretation. The majority of the Grand Justices arbitrarily restricted "messages of sexual transactions" to mean merely "commercial speech," which is completely blind to reality. The anonymity of the internet serves as a sanctuary for modern people's physical and mental well-being, and erotic and sexual speech is ubiquitous. The "reality" of "social reality" is that if citizens "dare" to post any "ambiguous" messages on any message board, they run the risk of being improperly harassed and summoned by the police (those living in Kaohsiung may even have to travel to Taipei for questioning). The standard proposed by the Grand Justices—that "if the perpetrator can prove that the information they disseminated did not involve child and youth sexual transactions... and has taken necessary isolation measures..."—may look "reasonable" on the surface. However, "substantively," due to the ambiguity of the regulatory content and the burden still placed on the perpetrator to "prove their own innocence," individuals cannot escape the distress of being summoned and interrogated by the police, facing strange looks from friends, relatives, and colleagues, or even being prosecuted by prosecutors. The majority of the Grand Justices raise the high banner of "protecting children and youths from sexual exploitation" and "universal fundamental human rights," yet at the stage of merely "transmitting sexual messages," which is so "highly abstract" and "very 'non-'dangerous," can they really restrict people's freedom to such an extent? The majority of the Grand Justices are simply too blind to social reality.

Third, the majority of the Grand Justices are engaging in far-fetched sophistry. The very beginning of the final paragraph of the reasoning states that the constituent elements of this article differ from those of Articles 22, 23, and 24 of the same Act, Article 227 of the Criminal Code, and Article 80 of the Social Order Maintenance Act. Furthermore, the former is an "inchoate offense" (danger offense) while the latter are "substantive harm offenses," making it impossible to compare the "severity of penalties" or the methods of "sanction." Such statements by the majority of the Grand Justices are excessively sophistical. Legislative technique typically limits a judge's "sentencing discretion" within a certain range. Regardless of how different the constituent elements or crime patterns may be, the length of the "penalty" itself generally reflects the legislature's degree of "behavioral disvalue" attributed to the perpetrator's act. Clever rhetoric cannot eliminate the fact that penalties can be compared in terms of severity; this specious reasoning is adopted simply because there is no other way to escape the blame of violating the "principle of proportionality"!

Fourth, the majority of the Grand Justices show a complete lack of judicial demeanor. Ever since Interpretations No. 371 and No. 572, the Grand Justices have frequently criticized "junior judges" of ordinary civil and criminal courts for being "incapable of presenting specific reasons objectively establishing a conviction that a law is unconstitutional." This is extremely inappropriate. Considering that our judicial officers are not easily selected and trained, those who manage to serve as judicial officers are mostly elite talents. After being tempered by practical adjudication work, it is hard to imagine that they truly lack the reasoning ability to "present specific reasons." Moreover, constitutional interpretation is the "duty" of the Grand Justices, while applying for interpretation is the "extra" work of ordinary judges. Amidst their busy schedules, if ordinary judges take on the extra task of drafting petitions to the Grand Justices out of consideration for people's rights, it is truly a blessing for the country. One should be eager to praise and encourage them; how could anyone bear to criticize them for being "incapable of presenting specific reasons objectively establishing a conviction that a law is unconstitutional"? Furthermore, as in this interpretation, the names of the judges petitioning for constitutional interpretation are explicitly written directly in the text of the reasons for the interpretation. The underlying intent of "warning" or "disdain" is truly difficult to accept, and it severely damages the public's admiration for the Grand Justices' "unyielding integrity"!