The Countess and the Pig

According to reports, the People First Party caucus held a press conference on the 17th announcing that it will promote the abolition of Article 140 of the Criminal Code, which criminalizes the "insult of public officials and public agencies." Although the reasons put forward by the People First Party to support this amendment are incorrect, the amendment itself is worthy of support.

The reasoning offered by the People First Party is roughly that this provision is a product of the military-government period in the 17th year of the Republic, has become outdated today, and has devolved into a tool for political persecution; therefore, it should be abolished. For this argument to hold water, it must essentially be premised on the judiciary having become a compliant tool executing the will of those in power—meaning that whenever those in power invoke this provision to target dissidents, conviction is certain. However, today, when strongmen are long gone and judicial independence is hardly questioned by anyone (facing a defeat in the lawsuit over the invalidity of an election, even the People First Party itself dared not claim it was judicial persecution), the aforementioned rationale for amendment is probably what is outdated.

From the perspective of legislative structure, this provision is placed under the "Offenses against Public Function" chapter; therefore, its legislative purpose appears to be ensuring the smooth operation of public duties. However, the types of conduct penalized by other provisions in the same chapter include violence, coercion, gathering crowds, using fraudulent means to obstruct examinations, destroying, damaging, or concealing official documents, defacing seals, or removing sealing marks—active actions that, based on general objective experience, are indeed sufficient to obstruct the advancement of public duties or the correctness of the results of public duty execution. Only the offense penalized by this article consists of speech expressing dissatisfaction with public officials or public agencies discharging their duties. By comparison, unless we believe that in obstructing public duties, speech can truly produce the same effect as violence and coercion; unless we truly believe that public officials or agencies, who can forcefully implement the government's will through the lawful force of the military and police, would be unable to continue performing their duties if insulted while carrying out them out, it is impossible to see what sense it makes to place this provision within the "Offenses against Public Function" chapter. Therefore, what this provision seeks to protect is not the smooth operation of public functions, but rather the dignity of public officials executing their duties and abstract government prestige. As human beings, public officials naturally possess human dignity that brooks no insult, but is the existing public insult offense under Article 309 of the Criminal Code not enough to safeguard the personal dignity of public officials? Must we rely on Article 140 of the Criminal Code to impose aggravated punishment for insults against public officials (the crime of public insult under Paragraph 1 of Article 309 of the Criminal Code is punishable by detention or a fine of up to 300 yuan, whereas the crime of insulting a public official under Paragraph 1 of Article 140 of the Criminal Code is punishable by imprisonment for up to six months, detention, or a fine of up to 100 yuan—a stark discrepancy in severity), failing which public officials' dignity cannot be protected? Therefore, to put it bluntly, this is driven by the ideological remnant of officials being noble and the people lowly. As a product of authoritarian politics rooted in the ideology of official nobility and civilian inferiority, this provision uses penal means to deter people from venting their dissatisfaction through speech insulting public agencies and officials, all to ensure the enforcement prestige of agencies and officials. People's dissatisfaction and criticism serve as medicinal stones correcting the government; this is the fundamental principle why democratic politics safeguards freedom of speech. Yet this provision attempts to silence those dissatisfied with the government through criminal punishment—this is the very reason why this provision should have been abolished long ago. In this regard, not only should the entirety of Article 140 of the Criminal Code be deleted, but the two characters for "public agency" in Article 141 of the same code should also be deleted alongside it.

Although our judicial practice and academia in the past seemed to deeply believe in the myth that this provision could protect government prestige, perhaps an old joke can puncture this illusion. The story goes that a countess went to court to accuse a man of insult because he publicly cursed her as a pig on the main street. When the trial opened, the defendant confessed to the accusation without reservation, and the judge admonished him, saying: "How noble a person is the Countess; how could you casually curse her as a pig?" Thus, the verdict established guilt, and the defendant was ordered to pay a fine on the spot. After paying the fine, the man asked the judge: "Since I cannot call the noble Countess a pig, can I call a pig the Countess?" The judge replied: "That is your freedom." Upon hearing this, the man turned, removed his hat, and said to the countess: "Good day, noble Countess." Any officials and public figures who believe that criminal punishment can protect prestige should remind themselves not to become the countess in this joke. If a democratic government still requires prestige, such prestige can only be rooted in the people's trust in the government's legality, legitimacy, and appropriateness of governance. The effect of criminal punishment is only fear, driving trust ever further away. A country that must rely on criminal punishment to stop citizens from angrily berating the government is not far from totalitarianism. By the same token, since government prestige cannot be protected through criminal punishment, how can patriotic sentiment be defended by criminal punishment? Therefore, why not also abolish Article 160 of the Criminal Code, which criminalizes the "offense of insulting the national flag, national emblem, and the posthumous image of the Father of the Nation"?

※ Published in: 2004-11-19 / United Daily News