As Article 11 of the Constitution says that “the people shall have freedom of speech, teaching, writing and publication,” it is indisputable that the government must protect these basic human and constitutional rights. However, the absence of any restrictions on speech might pose a threat to a democratic society.
One view is that advocating for China’s annexation of Taiwan by military force or intimidation should be protected by freedom of speech in Taiwan; if freedom of speech is to be guaranteed, the government cannot pass legislation that constrains the spread of this idea. This is wrong.
Taiwan already has laws excluding defamation and sexual harassment from freedom of speech, so it has never been a question about whether freedom of speech should be restricted, but rather where the boundaries of such restrictions should be drawn.
Given that some Taiwanese media outlets and political parties are increasingly vocal about their support for Chinese annexation of the nation by military force, it is necessary to consider whether such remarks should be protected.
In traditional jurisprudence, the general view is that freedom of speech should be protected to make the truth clearer through debate (John Stuart Mill); to promote the realization of other rights (John Rawls); ensure the “reinforcement of democracy, the advancement of knowledge, and the promotion of cultural, moral and economic development” (Council of Grand Justices’ Constitutional Interpretation No. 364); “for the purposes of ensuring the free flow of opinions and giving the people the opportunities to acquire sufficient information and to attain self-fulfillment” (interpretations Nos. 414 and 623); guarantee the supervision of all political and social activities (Nos. 509 and 613); to “safeguard the spiritual activities of the people” (No. 567); or all of the above (Nos. 644 and 678).
Based on these views, it seems reasonable to allow speech supporting annexation of Taiwan by military force. After all, no one can say whether such speech hinders the development of people or society, destroys their spiritual pursuits or is disadvantageous to the supervision of political and social activities.
However, this conservative view has made it increasingly difficult to cope with an anti-democratic wave. Some people with ulterior motives are making greater use of theoretical loopholes in the democratic system and the free world as they try to plant anti-democratic and anti-freedom seeds in democratic societies.
The government must fill these loopholes to better respond to these challenges.
Jimmy Hsu (許家馨), a deputy researcher at Academia Sinica’s Institutum Iurisprudentiae, says that freedom of speech should come with more corresponding democratic functions or social responsibilities to maintain the quality of a free democratic system.
Advocating for Taiwan’s annexation by force is in and of itself anti-democratic, as it supports replacing a democratic society with an authoritarian one. What would happen to freedom if a democratic society is not protected?
A democratic society is the foundation of all freedoms, including freedom of speech. Without a democratic society, there are no grounds to talk about guarantees for freedom. Allowing a statement that denies the continuation of a democratic society would ultimately undermine that society and, in turn, destroy freedom itself.
Just as no teenager should sit by and watch others harm their parents, people should not sit by as freedom of speech is used to brutalize their democracy. Taiwan must outlaw speech promoting military annexation of the nation. This is rational and necessary, and if Taiwan does not, it will eventually pay the price.
Chiu Chen-ya is a board director of a US-based non-governmental organization.
Translated by Lin Lee-kai
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