Mon, Apr 15, 2019 - Page 6 News List

Classification laws need overhaul

By Wu Ching-chin 吳景欽

When the Transitional Justice Commission requested files from the National Security Bureau about the murder of members of Lin I-hsiung’s (林義雄) family, the Kaohsiung Incident, the death of Carnegie Mellon assistant professor Chen Wen-cheng (陳文成) during the Martial Law era and 18 other cases, they only received the files for one case. The others had been marked “permanently classified.”

However, a lot of time has passed since these events, so it is difficult to understand what needs to be kept secret. It is high time that the provisions of the Classified National Security Information Protection Act (國家機密保護法) were discussed.

When it comes to classified national documents, whether they be “top secret,” “secret” or “confidential,” Article 11 of the act states that declassification should be done within 30, 20 and 10 years respectively. Although the terms can be extended twice, the article also states that all information must be declassified within 30 years and only special circumstances would justify the Legislative Yuan prolonging secrecy.

However, Article 12 states that national security information involving intelligence activities, sources or access channels shall remain permanently classified, with Article 11 not applicable.

Nevertheless, the article is fuzzy over the definitions of “sources of national security information and channels,” with application of the rules likely done at the discretion of the authority that approves classification.

It might be that once a document has been permanently classified, it would be extremely difficult to make it public. This presents the possibility that the rules could be used to permanently cover up illegal matters, sealing human rights violations and wrongful verdicts during the authoritarian era forever.

These outdated regulations must be quickly amended, but is it the case that before changes are made, there is no way to declassify documents that were permanently sealed?

According to Article 10 of the act, “classified information may be declassified or downgraded by the official who authorized the original classification or by the superior official based on his or her authority or upon application.”

So, if these files, which might involve issues of transitional justice, have been permanently classified, the National Security Council or its superior — the president — could declassify them.

The article also states that “individuals or groups whose rights and legal interest are injured or likely to be injured resulting from the classification” can seek to declassify or downgrade classified information by filing an application to do so.

If such an application “is denied by the original classification authority, the applicant may petition for administrative relief pursuant to the act.”

These approaches can put the spotlight on files that have been classified using national security as an excuse.

When a request by the Transitional Justice Commission for documents is rejected for national security reasons or because they are classified, the Act on Promoting Transitional Justice (促進轉型正義條例) is not clear on whether it is possible to ask a court to review the legitimacy of the classification and to issue a search warrant.

Amendments to address this situation should also be considered.

Wu Ching-chin is an associate professor at Aletheia University’s law department.

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