Reasons for Expanding the Scope of Protection for Civil Servants' Freedom of Speech

Our response is as follows:

1. Regarding the scope of civil servants who may invoke freedom of speech

   Although the author does not explicitly define it, the text is not limited to those who have obtained civil servant status through national examinations; rather, it encompasses "political appointees and elected public officials," who are otherwise excluded under Article 3, Paragraph 2 of the Civil Service Protection Act. Discussions on freedom of speech should naturally cover the broadest definition of public personnel—all individuals serving in agencies or schools within the civil service system—as all of them face potential conflicts between official ethics and freedom of speech. However, because these public personnel enter the civil service through different avenues, their dismissal, reward, and disciplinary regulations may vary, and the corresponding legal provisions may thus differ accordingly, which can be further clarified through factors such as elections, examinations, and contract hiring.

2. Regarding civil servants as agency spokespersons and holders of the fundamental right to freedom of speech

   The author suggests that statements made on behalf of an agency in an official capacity—so-called "agency spokespersons"—do not entail freedom of speech. However, individuals making such official statements are not necessarily barred from claiming freedom of speech. This commentary agrees with the author, as such individuals may still invoke freedom of speech, for example, in whistleblowing scenarios, to resist legal sanctions from higher-level authorities, the judiciary, or the Control Yuan. Similarly, in the democratic era, other civil servants should no longer be categorically and a priori excluded from holding fundamental rights based on the obsolete "special power relationship theory," even if their speech relates to their official duties. Furthermore, as the author points out (p. 12), under current regulations, individuals cannot seek independent judicial review against disciplinary actions based on abstract grounds such as "damaging the reputation of the agency" unless they are deprived of their civil servant status. Drawing a parallel to Judicial Yuan Interpretation No. 684—which ruled that students' fundamental rights on campus are no longer restricted to expulsions or similar disciplinary measures under Interpretation No. 382—judicial remedies for civil servants should likewise not be contingent upon the deprivation of their status, but should be guaranteed whenever their fundamental rights are significantly affected.

3. Regarding whistleblowing and the official ethics of civil servants

   The author reviews professional ethics in the Civil Service Act—such as loyalty, obedience, maintaining a good reputation, and confidentiality—and successfully highlights the historical limitations of their legislation, arguing that interpretation must embrace the values of democracy and human rights protection. This commentary expresses deep agreement with this view. Furthermore, by exploring "whistleblowing" as an integral part of civil service ethics—using the legislative example of the Act Governing Food Safety and Sanitation to affirm that protecting "whistleblowers" and turning point witnesses is necessary to uphold public interest and achieve justice, thereby compelling employers to yield their private-law rights—the author argues that, since the civil service system fundamentally pursues the public interest, there is even less reason not to look to similar legislative precedents. However, unlike the mere concession of private interests in the civil service system, different public interest considerations remain at stake. For instance, the 2010 Manning leak case in the United States required weighing whistleblowing against the safety of fellow service members, an issue well worth further elaboration.

4. Regarding the conflict between civil service ethics and freedom of speech

   Article 4, Paragraph 2 of the current Civil Service Act explicitly stipulates: "Without the permission of their superior officer, civil servants shall not arbitrarily issue statements concerning their official duties in a private capacity or on behalf of their agency." In other words, even when speaking in a private capacity, civil servants must still obtain permission from their superior for remarks concerning their official duties. Yet, such official ethics clearly conflict with their freedom of speech. The author does not directly critique whether such legislation excessively restricts civil servants' constitutionally protected freedom of speech, but instead appears to suggest that case-by-case balancing via the proportionality principle suffices. Private statements concerning official duties require prior approval from a superior; unlike Paragraph 1 of Article 4, this restriction does not seem limited to confidential matters, but encompasses all official matters. Whether such a restriction is overly broad is certainly questionable. The Grand Justices previously addressed political opinions under the Assembly and Parade Act in Judicial Yuan Interpretation No. 445, ruling that prior restraint is unconstitutional. Because civil servants' speech regarding official duties is largely intertwined with public affairs, it is difficult not to view it as political in nature. Subjecting non-confidential matters to a blanket requirement of prior approval raises serious constitutional concerns. With reference to Judicial Yuan Interpretation No. 509, the purpose of protecting freedom of speech is to "supervise various political and social activities." Having acknowledged that civil servants possess freedom of speech regarding their official duties, if the purpose of such speech is to supervise the government, it should undoubtedly be granted the maximum degree of protection.

5. Regarding the conflict between civil service ethics and the freedom of speech in whistleblowing

   The author suggests considering the inclusion of the duty to whistleblow as part of civil service ethics. However, the author does not address whether a civil servant's whistleblowing—if it involves infringing upon the reputation of the agency or other public officials—must be proven true to be exempt from relevant liability. Referring to the standard set in Judicial Yuan Interpretation No. 509, "even if the content of the speech cannot be proven true, provided that the actor has reasonable grounds to believe it is true based on the evidentiary material presented," they cannot be held liable. If we affirm civil servants' courage in whistleblowing, and the matters disclosed are themselves subjects of public interest, we must expand the protection of freedom of speech for whistleblowing, even if it may conflict with the reputation of others or the agency.