The July 24 investigation into seven Hong Kong newspaper corporations by the Independent Commission Against Corruption (ICAC) has drawn public concern and attention. These newspapers fiercely responded to the ICAC's search warrants with accusations that the authorities were trampling on press freedom and that it brought shame on Hong Kong.
The Hong Kong government, in turn, emphasized its stance of maintaining freedom of the press and the rule of law, and declared that ICAC's action was approved by the court in advance. But one of the newspapers, the Sing Tao Daily News (
On Aug. 10, the paper won a court victory over the government. The Department of Justice, on behalf of the ICAC, has filed to appeal the decision on Aug. 13.
The following is a standard legal procedure or universal principle of a society governed by law: everything related to public freedom and restriction of rights needs prior approval from the courts. In this case, the Sing Tao Daily News, in the name of protecting press freedom, has used legal means to deny ICAC assess to the documents it obtained in the search. In having the search warrants revoked, it has won an initial victory. This, at least, allows everyone who cares about press freedom around the world to have more faith in Hong Kong's rule of law.
The rule of law is a key to democracy. Not only does maintaining civil freedoms and rights depend on the protection of the rule of law, but judicial means must be available to resolve the increased litigation that democracy gives rise to.
But while a free press is precious, it too should be subject to legal restraint. Minister of Justice Chen Ding-nan (
The most prominent case that clarified the role of a free press under the rule of law was the New York Times struggle against the US government more than 30 years ago to publish the Pentagon Papers. In June 1971, the New York Times began publishing the papers, and the government immediately sought to stop further publication within three days. The case went from the Federal Regional Court up to the Supreme Court, and the final 6-3 decision by the court gave the New York Times the right to continue publishing the Pentagon documents. The whole lawsuit took only 15 days.
We need to note here the New York Times' circumspection in handling these confidential documents. There was a three-month period between obtaining the documents and publishing them. The main concerns were to be sure the publication did not aid the US' enemies in the Vietnam War or interrupt the Paris talks. The Supreme Court's 6-3 ruling in favor of the New York Times didn't mean that the court viewed press freedom as taking priority over national security.
Among the nine Chief Justices of the Supreme Court, three supported absolute freedom of the press against any government censorship, three emphasized that they respected the judgment of the government and agreed to impose restraint on the press, and the remaining three thought the publication should be protected as long as it did not cause any immediate and direct damage to national security.
In other words, a majority of the chief justices agreed in principle to restraints on press freedom. But a different majority also thought that publishing the Pentagon documents would not result in an immediate and noticeable threat to national security.
The most noteworthy aspect of this case was not only the New York Times' careful handling of the documents. After its victory, it praised the Supreme Court's ruling as a "ringing victory for freedom under law," which means the publication of these confidential documents took place under the rule of law.
A more recent case involves the British Broadcasting Corp's (BBC) accusations that British Prime Minister Tony Blair misled the country and "sexed up" evidence of Iraq's weapons of mass destruction before the Iraq war. The Hutton Report into the incident said that neither Blair nor the government had acted in a "dishonorable, underhand or duplicitous" way, and that it was in fact the BBC's own reporting that was misleading.
In Taiwan, the judiciary is the only means of settling disputes. On the road to democracy and rule of law, one milepost has been Constitutional Interpretation 509, which helps distinguish the line between press freedom and violation of rights. Having the court judge the privileges and responsibilities of the "Fourth Estate" -- rather than providing such supervision through government intervention -- facilitates a more reasonable and justifiable ruling. It is the rule of law, after all, which will provide fundamental protection of press freedoms.
Lu Shih-xiang is chief executive officer of the Foundation for the Advancement of Media Excellence and is a member of the Taipei Society.
TRANSLATED BY LIN YA-TI
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