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The civil
service as slaves to whim
By Hsu Yue-dian 許育典
Friday, Jan 01, 2010, Page 8
A recent episode of News-In-Motion (動新聞) has kicked off a controversy
surrounding freedom of the press and, more precisely, the abuse of press
freedom, leading to calls for the Child and Juvenile Welfare Law (兒童及少年福利法) to
be amended.
On Christmas Eve, the government approved a draft law. It would seem that a real
conflict exists between freedom of the press and the protection of youngsters.
However, the case also reveals problems with administrative self-regulation in
this country. There is clearly a lot of work to be done if the public wants to
have substantive rule of law in Taiwan.
Freedom of the press is important because the media constitutes the Fourth
Branch of government — the public aspect: Its own preservation and the
furthering of its own interests are secondary to this role.
Print media, radio and TV are tools for the articulation of public opinion,
promoting the growth of a democratic, multicultural society.
It follows that the state, acting within the bounds of the Constitution, can
legally intervene if it believes that minors are harmed by abuse of press
freedom at the hands of the media in their role as the Fourth Estate.
Let’s go back to News-In-Motion. An amendment to the draft — Article 38 —
requires that Internet platform providers (IPP) incorporate clear and feasible
safeguards, including protection mechanisms and self-regulating standards.
These safeguards are to protect children and juveniles from coming into contact
with Internet content deemed harmful to their physical and psychological health.
Should such content harm a child’s or a juvenile’s health, or an IPP fail to set
up the required safeguards, the National Communications Commission (NCC) will be
able to issue a fine of up to NT$300,000.
The NCC will also be able to demand that the problem be fixed within a given
time limit. IPPs that fail to do so risk further fines.
The question is, however, what defines “harmful”?
The government has constitutional support for intervention if it believes the
media has overstepped their bounds, although such intervention cannot be too
heavy-handed.
This issue is actually addressed in Article 23 of the Constitution, which
requires a proportional cost/benefit assessment based on what is deemed
“necessary.”
Of course, government institutions should have some room for maneuver when it
comes to legal concepts.
Legislators need to take into account that real life is complex, and a degree of
imprecision and space for interpretation is required to cover all eventualities.
Naturally, they have to be clear when drafting legislation, and ensure
simplicity, precision and clarity, but this is not necessarily incompatible
with the introduction of imprecise legal concepts.
There is something else. Legislators must ensure that these concepts can be
readily understood by laypeople, who must be able to understand the legal
implications.
Finally, the legislation must be verifiable through judicial review.
These points are crucial if the basic rights of the individual are to be
ensured.
Going back to the case under discussion, let’s look at the phrase in the draft:
“harmful to a child’s or juvenile’s physical and psychological health.” How does
one define “harm” here? Who is to decide? Everyone in the country has a
different definition of the word “harm” in this context. Does nudity in art, for
example, qualify as “harmful”?
There is room for interpretation here. Placing restrictions on press freedom
under the pretext of protecting children and juveniles, as has been attempted
here, is dangerous. For one thing, it will prevent the media from acting
efficiently in its role as the Fourth Estate.
It also leaves us open to the situation in which people would be afraid to say
what they felt, putting diversity and democracy at risk.
It should be mentioned that two years ago, when child welfare groups brought up
the issue of amending the Child and Juvenile Welfare Law, they voiced concerns
that imprecise wording could endanger press freedom.
The draft originally retained a facility for appeal and review, but this was
removed after it was sent to the Ministry of the Interior.
The reason the ministry gave was that it had no mechanism in place that could
deal with appeal and review, and it had insufficient human resources to create
one.
Now that attention has been drawn back to the issue, it has been decided in the
present draft to have such decisions made at the local level, as if local
governments are likely to have more resources at their disposal than the central
government.
This is another example of sloppy legislation.
The civil service can be dynamic and progressive. From the way the
News-in-Motion story has played out, however, it is clear that our government’s
civil service has stagnated. It is guided by public opinion. Looking at this
affair from beginning to end, you get the impression that civil servants need to
be reminded exactly what their jobs are.
The civil service should be running the government according to the law and
doing their utmost to ensure people’s basic rights. What they shouldn’t be doing
is swinging back and forth between extremes of populist opinion, leaving the
public unsure of where it stands.
Hsu Yue-dian is a professor of law at
National Cheng Kung University.
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