Chapter 9 Chapter Seven: The Absurd Logic of "Defamation of Officials"

The law cannot require citizens to be 100% accurate in criticizing the government and officials, otherwise it will only fundamentally cancel the citizens' right to supervise and criticize. On March 9, 2010, the Public Security Bureau of Shiyan City, Hubei Province issued a notice on its official website, saying that after review, the decision to detain Chen Yonggang was revoked, and the police in Yunxi County were ordered to apologize to Chen, compensate the state, and pursue related responsibilities. human responsibility.Previously, Chen Yonggang was arrested by the Yunxi County police across the region because he continued to post on the forum, questioning the collusion between the local government and "profiteers", spending huge sums of money on image projects, and reporting to the Central Commission for Discipline Inspection. It made a decision of administrative detention for 8 days.

It is worth noting that Premier Wen Jiabao emphasized in the "Report on the Work of the Government" on March 5, 2010 that we should further promote the openness of government affairs, improve various systems of public handling of affairs and administrative reconsideration systems, and create conditions for the people to criticize and supervise the government. Give full play to the supervisory role of news and public opinion, and let power operate under the sun. This statement aroused strong reactions from the public, and many officials responded positively on different occasions, expressing that they welcome media supervision and criticism.

Several interviewed experts believed that, from the perspective of reality, if "creating conditions for the people to criticize and supervise the government" is to be implemented, it is necessary to ensure that responsible citizens can safely supervise, criticize and supervise the government. Officials, especially the law, cannot require citizens to be 100% accurate in their criticism of the government and officials. It is necessary to eliminate the absurd logic of "slandering officials" in the system. In recent years, there have been repeated cases in which Chinese citizens were accused of "defamation" and imprisoned for criticizing local officials by sending text messages or posting posts.

According to the analysis of "defamation of officials" cases that have been exposed so far, most of these cases occur in the following way—first, the police pursue the "defamor", and then the media and the public are aroused. Finally, the police either withdraw the case, or apologize, or Compensation, clean up the "crimes" for the "defamors" until the case handlers are held accountable. "Citizens are entitled to criticize and monitor the government," Hu Xianzhi, a researcher at the National Academy of Governance and deputy secretary-general of the National Policy Science Research Association, told reporters. It is a feasible way. Public criticism will inevitably affect the reputation and interests of local governments, especially the directly responsible officials, so some officials will use their power and even use state machinery to restrict and deprive citizens of the right to criticize freely.”

"Using the public security organs to detain and try critics in the name of being 'defamed' is a common method used by some problematic officials." Hu Xianzhi said, "Coercive measures and trials are taken against citizens without finding out the truth. It cannot be ruled out that it is driven by the power of the problematic officials, and the 'slander' is used as a cover to cover up the corruption of the problematic officials and to retaliate against dissidents." "The problem of citizens criticizing and supervising the government is a problem that society is more concerned about at present. If it was not prominent before, then with the sudden emergence of network supervision, this problem is particularly important." Professor Wang Yukai from the Public Management Department of the National School of Administration accepted the reporter During the interview, he said, “Internet incidents have occurred frequently in the past two years, such as the Zhou Tiger case, the hide-and-seek case, the Deng Yujiao case, and so on. Citizens have effectively supervised the government through the Internet. This has a deep background—— In addition to the rapid development of network technology, the central government’s attitude towards network supervision, including citizen supervision and criticism of the government, has sent a clear and positive message.”

"But unfortunately, cases of officials retaliating against critics continue to occur, and the problems reflected from this are also very profound." Wang Yukai analyzed, "First of all, some officials have not corrected their mentality, and the 'imperial power thinking' has caused mischief. It is unbearable to be criticized by the public; secondly, some officials have not adjusted their position properly, and they used to be aloof. When the Internet age gradually lost this kind of authority, they are still unable to adapt for a while, and they are prone to confrontation with the public; Perfection is not perfect, except for government information disclosure regulations, there is no system to ensure that citizens can safely monitor and criticize the government and officials.”

Many interviewed experts also believe that the frequent occurrence of cases of officials retaliating against critics is also related to the fact that such officials who violated discipline and law were dealt with too lightly in the past and lacked the necessary deterrent force.In addition, the flaws in the current law are also worthy of reflection. In the past, most of the "defamation of officials" cases occurred on government officials at the county and district levels. Although citizens were held accountable for the crime of "defamation of officials", they were basically public prosecution cases, and "defamation" officials were rarely seen as plaintiffs. Appear.The identified "slanderers" have almost no chance to go to court with the officials they "slandered".

The crime of defamation refers to intentionally fabricating and disseminating fictitious facts, damaging the personality and reputation of others, and the circumstances are serious.According to the provisions of Article 246, Paragraph 2 of my country's Criminal Law, the crime of defamation is a case that can only be dealt with upon complaint, but "except for cases that seriously endanger social order and national interests." "According to the provisions of our country's laws, the crime of defamation is based on the principle of private prosecution, with the exception of public prosecution." Du Liyuan, a lawyer from Beijing Zhongsheng Law Firm, pointed out in an interview with reporters, "Only when defamation acts 'seriously endanger social order and national interests' , it is not restricted by the victim's 'handling only after telling', the public security organ can file a case for investigation, and the procuratorial organ can file a public prosecution."

But the reality is that once these "defamation cases" happened in the past, instead of finding out the facts as soon as possible and checking the authenticity of the content of the posts, the relevant departments pointed the finger at the critics in the way of "presumption of guilt" and quickly made civil defamation. Decisions concerning the establishment of a crime. Du Liyuan said that problematic officials often use their public power to put citizens' behavior on the line and classify them as "seriously endangering social order and national interests". They use the "defamation crime" as a cover to control and eliminate Diffusion of unfavorable speech.For this reason, citizens who monitor and criticize the government often become victims.

According to many interviewed experts, this practice not only seriously undermines the construction of the rule of law, but also handles cases illegally under the drive of power, so as to artificially create unjust, false and wrong cases, and willfully infringe on the legitimate rights and interests of citizens. What's more serious is that this turns the original individual-individual lawsuit into a confrontation between the individual and the government and the state's judicial organs, expanding the scope of intensified conflicts, which not only seriously damages the dignity of the law and the credibility of the government, but also makes citizens Legitimate rights and interests lose the protection of judicial fairness.

Of course, these hazards have aroused the vigilance of high-level officials.The "Notice on Strictly Handling Insult and Defamation Cases According to the Law" issued by the Ministry of Public Security in 2009 pointed out: "In recent years, a small number of local public security organs have failed to strictly and accurately handle cases in accordance with the law when handling insult and defamation cases, which has caused news media and social The widespread attention from all walks of life has produced adverse social impacts and damaged the image of public security organs and the credibility of law enforcement." The notice also pointed out: "Some people put forward criticism and suggestions from different angles, which is a manifestation of the exercise of democratic rights. If the criticism, complaints and some extreme remarks of the people are regarded as insults and slanders, and they are resolved by criminal punishment or public security punishment, Not only is there no basis in the law, but it may intensify conflicts." "The notice issued by the Ministry of Public Security positively affirms citizens' right to criticize and supervise, and has a clear understanding of the harmfulness of controlling speech with judicial charges of insult and defamation. This notice is aimed at some local officials. The method of "governing people" has been severely criticized, and it has been emphasized that cases must be handled strictly according to the law. No matter how effective it is, its humanized opinions and persuasive intentions are very obvious." Hu Xianzhi analyzed. A number of interviewed experts believed that even in previous "defamation of officials" cases, there were also problems of individual citizens being too inappropriate or criticizing reports that were inconsistent with the facts.However, in a modern society ruled by law, it is difficult for citizens and the government to have completely equal information. Therefore, the design of the law must tolerate citizens' wrong and unfair criticism of the government. Cancel. According to experts, in countries where the rule of law is developed, the government does not have the problem of being "defamed" by citizens, because the image of the government is based on the rule of law and public trust, and will not be seriously damaged by citizen criticism, and it does not have the rights of private legal persons. The basis of the right of reputation.Following this philosophy, France removed defamation clauses from its criminal law in the 1960s.It should be pointed out that many countries no longer protect the right of reputation through criminal legislation. It is not that these countries do not think the right of reputation is important, but instead turn the relief method to private law liability. To a certain extent, officials can avoid using public power to retaliate against critics. "Now some local governments and officials do not listen to any criticism from the public. This is an abnormal phenomenon." Professor Zhang Ming from the Department of Political Science at Renmin University of China told reporters, "Citizens have the right to supervise and criticize the government and officials. It is a basic right granted to citizens by the Constitution. Citizens pay taxes to support the government and officials, and the government and officials have an obligation to give citizens the truth. Apart from accepting the conclusions of the government and officials, citizens also have the right to find out the truth for themselves.” According to Article 41 of my country's "Constitution": "Citizens of the People's Republic of China have the right to criticize and make suggestions to any state organ or state functionary; The right to lodge a complaint, accusation or report by the organ.” "In the context of social transformation, the government and officials should expand various channels for public opinion expression and consciously accept citizen supervision and criticism. Public power should not be used as a tool for personal gain, let alone as a tool to suppress citizens' freedom of speech." Wang Yukai believes , "Only under the supervision of citizens can the government avoid detours, so even if citizens' criticisms are not completely accurate sometimes, officials should face it with the attitude of 'correct if there is something, and encourage if there is nothing'. Furthermore, the government is For public institutions, officials are public figures who perform public affairs on behalf of citizens, and citizens have the right to supervise and criticize the government and officials.” In order to eradicate the phenomenon of citizens being "criminalized for their words", the interviewed experts believe that the government must have the courage to reflect on the problems existing in the local administrative system, judicial operation mode, and rights relief channels, and make in-depth reforms. The meaning of building a harmonious society. "In a society under the rule of law, freedom of speech and fair trial constitute the fundamental values ​​common to all citizens." Hu Xianzhi believes that "public authorities must be placed under the supervision of citizens, and citizens' criticisms of the government may be inaccurate, but this This kind of inaccuracy cannot be regarded as a crime at will. Citizens have freedom of speech and freedom to criticize the government. As long as they do not maliciously fabricate facts, they should not be held accountable. Because the government has greater freedom of speech and stronger power than citizens. Information disclosure power." "There must be a system to protect citizens' right to supervise and criticize, at least to ensure that citizens will not be held accountable after criticizing the government and officials." Wang Yukai suggested, "At present, the government should do a good job in two aspects: on the one hand, the government and officials We should take a proactive attitude and explain the government's ruling philosophy and views to the society and the public through various channels to promote more mutual trust between the two sides; on the other hand, we must improve network management methods and abandon the traditional practice of "covering , Government information should be made public as much as possible, and if it cannot be made public, necessary explanations should be given to the public to eliminate unnecessary misunderstandings.” "In the crime of defamation, 'seriously disrupting social order and national interests' still lacks a detailed judicial standard, leaving a gap in the system for the abuse of public power." Du Liyuan believes that "it is necessary to use legislation or judicial interpretation , make a clear and restrictive interpretation of the crime of defamation as "seriously disrupting social order and national interests", or provide special exclusions for crimes, so as to prevent the extension of the crime of "defamation", increase the space for freedom of speech, and protect citizens' right to supervision and the right to criticize are inviolable, and keep the social pressure relief valve unblocked, so as to win social harmony and the stability of the foundation of the regime.” At the same time, Du Liyuan also suggested: "Unification should be carried out at the national legislative level, the public prosecution clause for such cases should be abolished, and all cases of private prosecution should be stipulated in the criminal law. Disclose information in a timely manner, eliminate misunderstandings of citizens through the spokesperson, or eliminate misunderstandings through individual explanations, etc. You can also file criminal private prosecutions in the courts yourself, so as to avoid the private use of individual officials and crack down on normal public opinion supervision and criticism .” "While holding law enforcement officers accountable, we should be more strictly accountable to the 'Phantom of Power' behind the scenes." Zhang Ming also suggested, "If officials abuse public power to retaliate against critics, they should be made to pay a heavy price. Give warnings, demerits, major demerits, demotion, dismissal, dismissal, and if the circumstances are serious, corresponding criminal responsibilities should be investigated.”