Article 153 of the Criminal Code on Instigation Is Unconstitutional! Press Conference on Filing the Motion to Suspend the Trial and Petition for Constitutional Interpretation in the March 23 Executive Yuan Occupation Case

On April 28, 2020, the second-instance judgment of the "March 23 Executive Yuan Occupation Case" was rendered. The second-instance court overturned the first-instance acquittals of seven defendants indicted for "instigating others to commit offenses" and convicted them instead. More than thirty years after Taiwan's transition from authoritarianism to democracy, in a highly democratized contemporary era, citizens calling upon compatriots to engage in peaceful assembly and express political claims are nevertheless convicted by the courts of instigation. This not only shows that the judiciary still retains an authoritarian legacy of tight control over the people, but has also sparked debate in academia and legal practice over whether the instigation offense in Article 153 of the Criminal Code should be abolished or retained.

Article 153 of the Criminal Code states: "Whoever publicly commits one of the following acts by means of text, drawings, speeches, or other methods shall be sentenced to imprisonment for not more than two years, short-term detention, or a fine of not more than NT$30,000: (1) instigating others to commit an offense; (2) instigating others to violate laws or regulations or to resist lawful orders." This provision does raise problems under the principle of proportionality, and its elements risk violating the principle of legal clarity, potentially resulting in an excessively broad scope of punishment and causing undue infringement upon the freedom of assembly. Today, pro bono defense counsel Yu Po-hsiang, speaking on behalf of the team, pointed out that this offense makes civil disobedience costly and threatening. Anyone attempting to use the freedom of association and assembly to urge the general public to join in social reform may instead face sanctions under this provision, which evidently contradicts the spirit of a democratic state in safeguarding the freedom of assembly.

The pro bono defense team and the clients filed appeals in this case last month (covering seven defendants charged with instigating others to commit offenses and one defendant charged with damaging property under the custody of a public official), and have since submitted their statements of grounds for appeal. Today, the lawyers and clients came to the High Court to submit two additional petitions to be forwarded to the Supreme Court: the "Motion for Suspension of Trial and Petition for Constitutional Interpretation" and the "Motion for Oral Argument."

We request the Supreme Court to suspend the proceedings of this case and petition the Grand Justices for a constitutional interpretation, so that Article 153 of the Criminal Code, which restricts freedom of speech, has the opportunity to be declared unconstitutional. Let the erroneous legal remnants of the authoritarian era be subjected to constitutional review, rather than rashly serving as the basis for the defendants' conviction! If the court considers the provision constitutional and sees no need to suspend the trial, it should still let the public understand the judges' reasoning through oral argument—specifically, whether the provision can be given a constitutionally conforming narrowing interpretation that strikes a balance between freedom of assembly and association and freedom of speech, thereby having a positive impact on Taiwan.

Attendees

318 Anti-Black Box Service Trade Agreement Pro Bono Lawyer Team
Yu Po-hsiang, Attorney-at-Law
Liu Chi-wei, Attorney-at-Law
Chao Wei-cheng, Attorney-at-Law
Tsai Hsiu-fang, Attorney-at-Law

Clients
Wei Yang
Hsu Shun-chih