The recent raid on the offices of Next magazine by prosecutors and investigators was reminiscent of an earlier search of the China Times Express offices in October 2000. Both cases are related to the alleged embezzlement by former National Security Bureau (NSB, 國安局) cashier Liu Kuan-chun (劉冠軍).
There are other similarities as well -- the publication of allegedly classified documents, prosecutors searching newsrooms, media objections to the government's clampdown on press freedom and the Ministry of Justice's claim that everything had been done in accordance with the due process of law. The raids raise the question of where the demarcation lines are between national security, criminal investigation and press freedom?
After the China Times Express incident, the media rose en masse to lambast prosecutors, while the Legislative Yuan passed amendments to curtail the most powerful prosecutorial weapon -- ?the right to search. Under the new Criminal Procedure Law (刑事訴訟法) which took effect on July 1, 2001, pro-secutors must apply for search warrants from the court -- except in emergencies. The Ministry of Justice has claimed that every step taken in the raids on Next was legal because the raids were conducted with a search warrant issued by the court.
Minister of Justice Chen Ding-nan (陳定南) has said that "the news media is not a forbidden area for searches" and "the ROC Constitution does not protect the Legislative Yuan from being searched, let alone newspaper offices." Chen's comments stake out the government's position on conflicts between press freedom and criminal investigation. But is this an appropriate stance?
The press, the fourth estate, is safeguarded by the ROC Constitution. Article 11 of the Constitution stipulates, "The people shall have freedom of speech, teaching, writing and publication." The Council of Grand Justices' constitutional interpretation No. 364 states that press freedom is guaranteed by Article 11.
Does that mean newspaper offices cannot be searched? Press freedom is certainly important, but the rights of law enforcement agencies -- to collect evidence as part of a criminal investigation -- are equally important. There is no reason to give the news media "extraterritoriality" and hence immunity from searches.
Allowing the government to raid news organizations at will, however, would very likely stifle the flow of information, making people hesitate to provide information to the media and thus affecting media sources. What needs to be weighed is how to balance the interests of law enforcement and press freedom.
There have been cases in the US in which police armed with search warrants have scoured newspaper offices. The newspapers in question accused the government of infringing upon their freedom of speech. The US Supreme Court ruled, in Zurcher vs. Stanford Daily in 1978, that the news media may be subjected to search only in the following circumstances: Law enforcement has probable cause to believe that evidence will be found, the search warrants must specifically describe the places to be searched and the things to be seized and the search and seizure must be reasonable.
The court verdict stressed that the ruling had been made on the basis of constitutional interpretations, but that legislative or administrative agencies may establish stricter regulations to protect press freedom or prevent the abuse of police power.