Friday, July 25, 2008

Decriminalize Defamation, Now!

Decriminalize Defamation, Now!
China Times editorial (Taipei, Taiwan, ROC)
A Translation
July 25, 2008

President Ma has withdrawn the lawsuits he filed during the run-up to the presidential election, when the two camps filed a series of suits and countersuits against each other. Chen Shui-bian on the other hand, has decided to file a new lawsuit of his own. Chen had been summoned by the court to testify in the Lafayette Arms Procurement defamation lawsuit. He was physically assaulted as he approached the courthouse. Who knows the amount of legal resources squandered because politicians cannot refrain from endless recriminations? This is one of the biggest blind spots in the system. The justice system has never understood that defamation is a civil offense, and should not be considered a criminal offence. We have not been able to decriminalize defamation, the way other countries have, and restore it to the status of civil law. As a result Taiwan has paid a huge social cost. The issue requires serious soul-searching.

Several years ago some knowledgeable parties proposed decriminalizing defamation. They claimed that defining defamation as a criminal offense was unconstitutional, and petitioned the Grand Justices for a constitutional interpretation. The Grand Justices ruled that the law was not unconstitutional, and that the petitioners' reasoning was specious. The Grand Justices ruled that criminal penalties could help make up for inadequacies in civil compensation. Their ruling reflects an outdated mindset that regards criminal penalties as a form of vengeance. The Grand Justices ignored the fundamental difference between civil law and criminal law. Civil law is about compensation. Criminal law is about punishment. The forgot that criminal penalties contain a hidden danger. They allow state power to intrude into civil disputes, but do not allow the aggrieved parties to obtain genuine relief.

The Grand Justices do not consider laws defining defamation as a criminal offense unconstitutional. But that does not mean defamation cannot or should not be decriminalized. The reason is simple. Defamation harms an individual's reputation and legal interests. Civil law is perfectly capable of providing adequate relief. State intervention and criminal proceedings are unnecessary. They merely make conflict resolution even more difficult. Politicians resort to defamation lawsuits every day. One case gets filed on the heels of another. They yearn to see their opponents in prison. Meanwhile society must dance to their tune, unable to find a minute's peace. This is something everyone clearly sees.

Those who least ought to resort to criminal prosecution in defamation cases are precisely those most prone to use them -- public figures and politicians. Politicians, whether administrative officials, Members of Parliament, or political party leaders, wield immense power. On the one hand, their words and deeds should be subject to closer scrutiny than those of the general public. They also have an obligation to be more tolerant of criticism. On the other hand, they are more media savvy. They are far more adept than the general public at using media spin-control to defend themselves. Their ability to protect themselves by such means is often greater than any compensation they might derive after a long, drawn out court decision. If they resort to civil suits merely to demand monetary compensation, that is a legitimate exercise of their rights. But if they use criminal penalties to throw others in prison, that is a horse of a different color.

Take Chen Shui-bian for example. A number of years ago he was sued for defamation. He got a taste of what "political persecution" was like. But when he came to power, his administration did not champion the decriminalization of defamation. Those in power continued to charge member of the political opposition with the crime of defamation. Now that Chen is again in the opposition, he once again faces the threat of criminal penalties for defamation. If convicted, he will probably accuse the court of political persecution. The problem is not the fairness of the court's judgments. The problem is the legal system has provided politicians with a weapon they can use to exact revenge against their opponents, by threatening them with prison terms. It has also provided politicians who lose such lawsuits the opportunity to accuse the ruling authorities of exerting undue influence on the administration of justice, and to challenge the independence of the judiciary. If such lawsuits involved only civil litigation, there would be no allegations of political persecution. The problem would be far simpler. Society would be quieter and more peaceful.

Do not assume that civil compensation is incapable of redressing grievances, or that civil compensation cannot compensate for injury. After all, the courts can require those convicted to publish the judgement or an apology in the media. That is one way resolve the problem, via reconciliation. If the celing for compensation has been set too low, the laws may be amended, raising the limit. The courts can also stipulate punitive damages. Punitive damages and criminal penalties are different. Punitive damages are paid to the victim. Criminal penalties are paid into the state treasury. The victim is an individual. What right does the government have to pocket the fines?

There has already been more than one change in ruling parties. Society has made considerable progress. But politicians continue to file defamation lawsuits against each other. The government has limited legal resources. The damage done to the justice system and the government's credibility is incalculable. The political stage is a game of musical chairs. When people are in office they may be plaintiffs. But when people are out of office they may well end up as defendants. Round and round, back and forth. Politicians have turned the nation's system of criminal law into a weapon against their enemies. Hasn't society suffered enough?

It is high time defamation was decriminalized and redefined as a tort law issue. President Ma has withdrawn his lawsuit. Will he follow through and urge the Ministry of Justice and the Legislative Yuan to promote the decriminalization of defamation?

中國時報  2008.07.25









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