If you perform a Chinese-language search of the Republic of China Constitution (憲法) and the Additional Articles (增修條文) with the keywords “press” and “newsgathering,” you will find that nowhere in the current Constitution, nor in the Additional Articles, does it mention freedom of the press or the right to gather news. Nevertheless, there has long been a consensus in Taiwan about press freedom and the right to gather news. Do these rights really enjoy no constitutional guarantees in Taiwan?
This is why Democratic Progressive Party (DPP) Chairperson Tsai Ing-wen (蔡英文) said that we need to turn to a system of constitutional government in dealing with cross-strait relations: We cannot rely on the Constitution alone. The nation can only be governed by using a legal system based on a constitutional government formed from a constitution that has been interpreted, extrapolated upon and made relevant to Taiwan. One of the most crucial constituent elements of this well-rounded form of constitutional government is the Grand Justices’ constitutional interpretations.
Article 11 of the Constitution states that: “The people shall have freedom of speech, teaching, writing and publication.” While freedom of the press is not mentioned per se, the 2011 Judicial Yuan Grand Justices Interpretation No. 689 makes clear in the written reasoning that “for purposes of ensuring that news media can provide newsworthy diverse information, promoting full and adequate flow of information to satisfy the people’s right to know, formation of public opinion and achieving public oversight, in order to maintain the normal development of a democratic and pluralistic society, freedom of the press is an indispensable mechanism, and shall be protected under Article 11 of the Constitution.”
In addition to stating that freedom of the press is guaranteed, Interpretation No. 689 goes on to say that: “Newsgathering is indispensable for providing the contents of news reports through newsgathering and verification, and shall be within the scope of the protection of press freedom.”
The link between freedoms of the press and newsgathering and the basic rights of citizens that is mentioned in Article 11 of the Constitution in the reasoning of Interpretation 689 is the earliest instance of such a link in the history of constitutional government in Taiwan. In the attendant opinion to the interpretation’s reasoning, Grand Justice Huang Mao-jung (黃茂榮) pointed out that freedom of the press had never been mentioned in any previous Grand Justices constitutional interpretation, and had only been mentioned in individual judge’s opinions on these interpretations, and then always only linked with freedom of expression. He adds that if freedom of the press is already accepted as understood within the nation, then it would not be too much to say that Article 11 of the Constitution guarantees it as a basic right of a citizen.
Huang went on to say that there was another point raised in the reasoning of the interpretation, which is that it also applied to newsgathering activity by ordinary citizens wanting to provide the general public with newsworthy information or intended as a way to promote debate on public affairs in the interests of public oversight of the government.
In other words, ordinary citizens have the right to gather news, so long as it is to provide newsworthy information to the public or to foster debate on what is happening in society. That is to say, unless they violate other laws in so doing, it is inappropriate not only to detain journalists in the act of newsgathering, but also any other individual present on the scene taking photographs. Detention? Confiscating mobile phones? Both unconstitutional.
Christian Fan Jiang is deputy convener of the Northern Taiwan Society’s legal and political group.
Translated by Paul Cooper
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