The Supreme Court on Thursday upheld the high court's decision against former president Chen Shui-bian (陳水扁) in the "soft coup" case, ordering him to pay NT$1 in compensation and run half-page apologies in three local newspapers to former Chinese Nationalist Party (KMT) chairman Lien Chan (連戰) and People First Party Chairman James Soong (宋楚瑜). This case is important because it is a confirmation of the freedom of speech, or the right of every citizen to freely criticize the conduct of authorities in dealing with public affairs — rather than the protection of powerful individuals who wag their tongues rather too freely.
On the surface, this case does not have much room for debate: Chen accused then KMT chairman Lien and Soong of attempting to stage a “soft coup” by persuading high-ranking government officials to feign illness and retire after his re-election in 2004. After Lien and Soong sued for slander, Chen claimed he had grounds for his accusations. However, he failed to provide concrete evidence and consequently lost the case.
During the second trial, Chen’s lawyer produced what he claimed to be “evidence” substantiating the coup remark — a written report by former minister of national defense Lee Jye (李傑). However, the court dismissed the report, saying it was produced only after the accusations had been made and did not make any reference to either of the two parties. The court ruled that Chen’s accusations were unfounded, with not even a shred of evidence to support them.
Constitutional Interpretation No. 509 stipulates that those who damage the reputation of others through speech must have considerable reason to believe that they are propagating the truth. In this case, Chen was unable to prove he had any substantial justification and thus lost the case.
In my opinion, what should be highlighted in the “soft coup” case is not the status of the persons being criticized (Lien and Soong) but that of the criticizer (Chen). How can the leader of a nation, the commander-in-chief, the person who controls the intelligence service and has the highest right of investigation in the land hurl unfounded accusations with unbridled liberty?
When important officials or presidents are involved in slander, they should bear even more responsibility than the general public or the media in terms of providing proof and should not be allowed to escape liability easily, using freedom of speech as an excuse.
The US Supreme Court’s progress in offering better protection against slander and libel, beginning in 1964, was to a certain extent a product of time and the system.
On one side is the US government and law enforcement authorities in the south who used slander or libel to suppress or intimidate proponents of civil liberties. On the other side are the media and social rights groups that did not have the investigative authority of judicial bodies. To ensure that civic bodies and the public could criticize the government with impunity, the court placed the onus of providing evidence on the government officials or public figures.
US courts hope the public were able to critique public servants or influential public figures without fear of treading on thin ice. So long as the criticism is not wanton abuse of free speech, there is little risk of liability for defamation.
In countries like the US where political standards of behavior have reached a certain level, there are few instances of officials wantonly abusing members of the public.
This is in contrast with Taiwan, where both government officials and the public condemn one another imprudently.However, compared with high-ranking government officials, the media or the public, who have no investigative authority, are more likely to say the wrong things — and hence deserves more tolerance.
In any case, criticizing the government is an inherent responsibility of citizens in a democracy and should be encouraged . But why should those with the resources and authority, such as government officials, be accorded special protection by the Constitution when they wantonly condemn the public without evidence?
Former presidents Lee Teng-hui (李登輝) and Chen have successively lost their defamation lawsuits. This should serve as a warning: Powerful political figures should speak with caution. Freedom of speech is a sword that the public may wield against the government, not a shield behind which political figures can hide.
Bruce Liao is an assistant professor of law at Soochow University.
TRANSLATED BY ANGELA HONG
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