Taipei District Court judges, delivering their verdict on the "soft coup" slander case brought against President Chen Shui-bian (陳水扁), said that the president does not enjoy freedom of speech. Their reasoning was that human rights were accorded to the public to balance government control, and that as president, Chen represents the government.
This line of logic is rather wanting, and it appears that the judges might well benefit from studying a refresher course on the Constitution.
The claim that the president represents the government deserves further discussion. Legislators are also a part of the five branches of government, and they enjoy impunity in regard to what they say in the legislature to an extent that exceeds the freedom of speech granted to the general public.
It is therefore insufficient to claim that the government does not have freedom of speech simply because a distinction exists between the government and the general public.
In the US, some academics view the government's right to control public speech as a form of government speech.
For example, the government can express its standpoint through the process of imposing restrictions on satellite TV channels. According to this view, we can refer to government controls when we talk about government speech.
Under the circumstances, of course, it is important not to let the government have unlimited freedom of speech. It should be subject to constitutional controls.
Controls are also important for ensuring government transparency. The right to silence is part and parcel of freedom of speech, but it is not extended unconditionally to the government. Many articles in the recently passed Access to Government Information Law (政府資訊公開法) require the government to make its information available to the public.
The government, indeed, has no freedom of speech in the above two situations, either in its capacities as regulator or as a possessor of information.
But Chen's defamatory comments against former Chinese Nationalist Party (KMT) chairman Lien Chan (連戰) and People First Party (PFP) Chairman James Soong (宋楚瑜) were neither made on behalf of the government nor were representative of government control. They were made by Chen in the capacity of an individual, and were therefore not an expression of governmental power.
If they were indeed personal comments, then Chen should of course enjoy freedom of speech in making them. Otherwise, how strange it would be for a president to be gagged and prevented from airing his own views.
The reason Chen lost the slander lawsuit is very simple. Chen does enjoy freedom of speech, but this freedom of speech is not unlimited.
That is, he must also comply with certain restrictions, one of which being that people are not allowed to slander each other. Nobody enjoys the freedom to defame others, not even the president.
Although the Council of Grand Justices' constitutional interpretation on what constitutes slander has been relaxed, it is still considered to be slander if one cannot provide evidence to back up accusations. Hence, Chen would still have lost this lawsuit if the judges had treated the president as an ordinary citizen.
But the judges clearly stated in their ruling that the government is not entitled to freedom of speech. As to what information can be made public, this was not considered to be entirely up to the government either.
The judge asked Chen to offer evidence to prove that Lien and Soong had attempted to launch a "soft coup" against the government, which he declined to do, citing the protection of state secrets.
The judge admonished Chen for this: Although the government can decide what shall constitute classified information, it must not willfully designate information as state secrets to cover up wrongdoings, which is clearly stated in Article 5 of the Law of National Secrets Protection (國家機密保護法).
If an item of disclosed information is deemed to be a state secret, judges can choose to restrict certain parts of a trial from being made public.
Since Chen was not willing to provide any hard evidence, he was unable to prove that Lien and Soong had been orchestrating a coup. Thus, the Taipei District Court ruled in favor of the opposition leaders.
James Yang is a doctoral candidate at the Graduate Institute of National Development, National Taiwan University.
TRANSLATED BY PAUL COOPER AND DANIEL CHENG
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