Indigenous Defense Submarine program head Huang Shu-kuang (黃曙光) said that “certain legislators” made it difficult for the program to purchase critical equipment and leaked confidential information. Huang did not give names, but before long, retired navy captain Kuo Hsi (郭璽) identified Chinese Nationalist Party (KMT) Legislator Ma Wen-chun (馬文君). Ma then sued Kuo for slander. However, the case should be considered one of treason, not defamation.
Under Article 310 of the Criminal Code, a person who disseminates information or circulates writing or images that would injure the reputation of another can be sentenced to up to two years in prison.
However, if a person can prove the truth of the statement, writings or images, they would not be punished for defamation.
Regarding the meaning of “truth,” Judicial Yuan Interpretation No. 509 and Constitutional Court Judgement No. 112 Hsien-Pan-8 state that an offender should not be punished if there are objective and reasonable grounds for them to believe a defamatory statement to be true.
Therefore, in the case regarding the submarine program, as long as Kuo can prove that his accusation against Ma is based on evidence, rather than on a deliberate fabrication with malicious intent, the incident would not be considered defamation.
The focal point of this dispute is not to investigate whether the defamatory statement is true, but to assess whether it was disseminated with malice.
To confirm if information related to national security has been disclosed to outside parties, the matter should be investigated as a potential incident of treason.
Under Article 109 of the Criminal Code, “any person disclosing or delivering a document, plan, information or another thing of a secret nature concerning the defense of the Republic of China shall be sentenced to imprisonment for not less than one year, but not more than seven years.” If that information was given to a foreign state or an agent of a foreign state that prison sentence is to increase to three to 10 years.
What constitutes as “foreign” used to be ambiguous and controversial with regard to China, but in 2019, amendments to the section on treason were made to provide clarity. Today, Article 115-1 specifies that all of the regulations regarding treason “also apply to offenses committed” in China, Hong Kong, Macao or “any hostile foreign forces.”
Legislators have the right to freedom of speech and can review official documents if need be, but they should abide by the law to protect national security. Whether a legislator signed a nondisclosure agreement is irrelevant. No matter how the alleged leak was conducted, it could be considered a criminal act.
Article 241 of the Code of Criminal Procedure states that a public official who, in the execution of their official duties, “learns that there is suspicion that an offense has been committed must report it.” Now that the media has reported on the alleged leak, prosecutors should take the initiative to investigate it, as per Article 228 of the Code of Criminal Procedure, which says that once a public prosecutor learns of an offense, they should immediately investigate. The reason is simple: This has everything to do with national security, and if the accusation is false, the accused would be able to claim their innocence.
Wu Ching-chin is a professor in Aletheia University’s Department of Law and director of the university’s Criminal Law Research Center.
Translated by Emma Liu
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