10th International Judicial Conference in Strasbourg from 23 to 24 May 

Striking a Proper Balance?

Judicial Roles in Ensuring National Security and Freedom of Press in Taiwan

By Yueh-Sheng Weng
President of the Judicial Yuan, Taiwan
(Original text in English)

1. Introduction
2. Judicial Protection over Freedom of Press in Taiwan
2.1. Interpretation No. 509: A Landmark Case on the Limitations of Freedom of
Speech
2.2. Interpretation No. 364: The Foundational Interpretation to Safeguard
Freedom of Press
2.3. Interpretations No. 414 & 407: Other Related Rulings Concerning the
Freedom of Press
3. Judicial Balance between National Security and Human Rights Protection:
Some Illustrative Examples
3.1. Interpretation No. 490: Freedom of Consciousness v. National Security
3.2. Interpretation No. 461: Political Accountability v. National Security
4. Conclusion

Striking a Proper Balance?
Judicial Roles in Ensuring National Security and Freedom of Press in Taiwan

1. Introduction

Recently, a major controversy occupied the spotlight in my country. At issue: Where and how to draw the line between national security and freedom of press.

It all began about a month and a half ago. A tabloid magazine and a major newspaper in Taipei reported that our former President, Mr. Lee Teng-hui, approved the siphoning off certain national security budget over the years to create several secret slush fund accounts. They further reported how the funds were used, with many behind-the-scene activities that potentially could have damaging effects on the nation’s diplomacy. In response, the Ministry of Justice searched the office of the magazine, seized many documents, and enjoined the release and distribution of thousands of copies of the magazine. Eventually the Ministry brought actions against the two press agencies on the ground of espionage. Most media protested strongly and questioned whether the freedom of press still exists in Taiwan as the political system there was long thought to have transformed into a full democracy.

Indeed, in accordance with a Freedom House’s survey, Taiwan and Japan are regarded the two most democratic and free societies outside Europe and North America.

The government argued that the action was legal and necessary to safeguard the national security because the military threat from the People’s Republic of China was never laid to rest. The media, however, rebutted that the disclosed information is in every sense relevant to susceptible government corruption and it is their professional duty to inform the public as such.

As to the society as a whole, there seems to be a rather complex sentiment prevalent among the general public.
Many scholars believe that a proper balance can nevertheless be achieved between freedom of speech, one of the most important values in a democratic and open society, and national security, an equally important value to the survival of a nation, especially in the case of my country.

Article 11 of our Constitution explicitly guarantees the freedom of speech, teaching, writing, and publication. Consensus holds that the same protection also extends to the freedom of press. On the other hand, our Constitution also recognizes national security is critical to the survival of the nation. Therefore, for example, Article 5, Paragraph 5 of the Additional Articles of the Constitution, the set of our Constitution amendments, provides that a political party may be deemed unconstitutional if its goals and activities should endanger our nation’s very existence or its free and democratic constitutional order.

As both the freedom of press and the protection of national security are fundamental values embodied in the Constitution, proper application of the two constitutional norms and the resolutions of any potential conflicts must subject to constitutional adjudication and proper interpretations.

Based on our Constitution, the power of constitutional interpretation is vested solely with the Council of Grand Justices, a functional Constitutional Court. Currently, the Council consists of fifteen Grand Justices selected from distinguished justices of supreme courts and eminent law professors. Our law permits citizens to petition the Council concerning the constitutionality of a given law or regulation being applied to their cases. Before a citizen may bring forth a constitution issue before the Council, however, he or she must first exhaust all legal remedies in accordance with all available procedures.

It is important to note that the subject matter for constitutional review is limited to the constitutionality of the challenged laws and rules. The Council cannot review findings of fact nor render any direct remedies.
In addition to citizen petitions, judges at all levels may temporarily suspend the proceedings before them, if they are convinced that an applicable law or regulation is inconsistent with the Constitution.
It is necessary to point out that parties over a dispute between national security and freedom of press should not resort to the Constitutional Court as the first and only forum. They should, instead, first bring their cases to a common court having proper jurisdiction and go through all necessary appeal proceedings.

In our system, the Judicial Yuan is the highest body representing the judicial branch. This Yuan consists of a Council of Grand Justices, a Supreme Court, a Supreme Administrative Court, and a Committee on the Discipline of Public Functionaries. Under the Supreme Court and the Supreme Administrative Court, there are common courts handling general controversies and disputes other than military matters.

Since 1999, as a result of a national conference, we have been undertaking a massive judicial reform. I am very pleased to report that we have achieved substantial improvement on the quality of judicial adjudications and full judicial independence.

At this point, I would like to direct your attention to our judicial protection over the freedom of press. I will also offer several rulings of the Council of Grand Justices to illustrate how the Council seeks to strike this delicate balance between national security and the constitutional guarantee of human rights protection, which obviously includes the freedom of the press. Finally, I shall demonstrate that while it has never been easy for the Council to draw such a line, it has thus far truly done some wonderful services to clarify the issues. Most importantly, the experiences in Taiwan should serve as a vivid proof that the higher the degree of judicial independence, the better for courts to strike a proper balance between national security and the protection of human rights

2. Judicial Protection over Freedom of Press in Taiwan

    2.1 Interpretation No. 509: A Landmark Case on the Limitations of Freedom of Speech

In Interpretation No. 509, the Council of Grand Justices held that the freedom of speech is a fundamental right guaranteed by Article 11 of the Constitution, which demands maximum amount of protection by the government. Article 310, Paragraph 3 of the Criminal Code on defamation requires “truth” as an affirmative defense against a conviction. While the “truth” requirement might purports to truthful speech and responsible speakers, the Council held that this requirement should not be interpreted in such a way that the accused must prove the truth of a statement’s content. Consequently, even though a person who made the remark or press agency cannot prove the accuracy of what may be perceived as a defamatory statement, that person or agency may not be criminally liable after all. It is the prosecutors who must bear the burden of proof. After the release of this Interpretation No. 509, it is widely believed that the Council of Grand Justices has greatly enhanced the constitutional protection of free speech.

    2.2 Interpretation No. 364: The Foundational Interpretation to Safeguard the Freedom of Press

The Council rendered Interpretation No. 364 in 1994 amidst heated democratization and constitutional reform in Taiwan. Against this backdrop, the issuance of this ruling greatly enhanced the constitutional guarantee of free speech. This Interpretation firmly established the rule that the government must fairly and reasonably distribute the use of radio wave frequencies or bandwidth. This ruling clearly identified equal media access within the scope of the freedom of free speech.

    2.3 Interpretations Nos. 414 and 407: Other Related Rulings Concerning the Freedom of Press

In Interpretation No. 407, the Council of Grand Justices had the first opportunity to examine how to draw a line between an unprotected speech such as obscenity and a protected one. Here the Publication Law provision that regarded obscenity materials unlawful and punishable was held constitutional. Although there have been criticisms that the Council has decided the issue too conservatively, this Interpretation should nevertheless be viewed as a way to define the scope of free press.

Similarly, in Interpretation No. 414, the Council made a distinction between a commercial speech and a protected speech, with the former enjoys less protection. While recognizing commercial speech, like political speech, cannot be entirely regarded as irrelevant to constitutional guarantee of free market of ideas, the scope of protection and the level of restriction to commercial speech ought to be different from protected speech because the manipulation of commercial speech can have a detrimental potential to the public good.

3. Judicial Balance between National Security and Human Rights Protection: Some Illustrative Examples

    3.1 Interpretation No. 490: Freedom of Consciousness v. National

      Security

Article 20 of our Constitution prescribes that citizens shall have the duty to perform military services. Clearly it is for national defense, and critically important in light of the continuing military threat from the People’s Republic of China. Article 13 of the Constitution, however, also guarantees that citizens shall have the freedom of religious belief. The question here is, can a person choose not to perform his constitutional duty of military service because of his religious belief? In Interpretation No. 490, the Council answered the question in the affirmative. The Council strived to maintain a balance here. While affirming the duty of performing military services, the Council also asserted uncompromisingly that the forum and ways for the performance of such a duty must accommodate persons with conflicting, religious viewpoints. This ruling was generally viewed as an appropriate balance struck by the Council.

    3.2 Interpretation No. 461: Political Accountability v. National Security

In Interpretation No. 461, regardless of national security concerns, constitutional principles of democracy and political accountability were firmly reassured. The Council held that the Minister of National Defense is part of the Executive Yuan, or the Cabinet, therefore should be responsible to the Legislative Yuan. As a result, the Minister of National Defense may be subject to the interpellation session of the Legislative Yuan. In other words, the Minister of National Defense cannot reject such interpellation on the ground of preserving national security information. With regard to the military chief-of-staff, however, although this person is in charge of military operations, the Council ruled that he is not the head of a ministry under the Constitution and thus may not subject to interpellation by the Legislative Yuan.

4. Conclusion

As Republic of China transforms itself into a full democracy, the judiciary will have to shoulder more responsibilities in resolving sometimes very difficult dilemmas between the government interests (or collective values) and the individual human rights. Indeed, the workloads of the Council of Grand Justices and all level of common courts have been consistently on the increase.

A number of recent court decisions on defamation involving public figures and the press have drawn significant attention from the public. It has never been easy, and perhaps never will, for courts to draw a line between human rights protection and public interests, especially when national security is a part thereof. Yet, as the guardian of both human rights protection and constitutional order, the court must take efforts to balance the two. Our experience has demonstrated that the higher degree of judicial independence, the greater possibility of the courts to strike a proper balance between the two.

– ### –