The Public Servants Administrative Neutrality Act enacted on June 10 lays out a beautiful vision for the civil service, but also shows the slipshod, dragnet approach of legislation.
The act’s formulation and implementation can indeed guide public servants to carry out their administrative duties fairly, without bias for or against any political party and without getting involved in political disputes. However, it does not give due consideration to freedom of expression and academic thought as protected in Article 11 of the Constitution.
This oversight gives rise to a number of problems with regard to the act and which categories of people it applies to.
As for who will be subject to regulation by the act, the legislation gives insufficient consideration to the question of academic freedom.
Article 17 of the act makes “teachers or professors with administrative responsibilities in public schools” and “research personnel in public academic research institutions” subject to its provisions — just like ordinary public servants.
What happens if an academic is of the opinion, based on his or her research, that there are problems with the policies of a particular political party and therefore organizes a petition or demonstration about it?
Anyone who engages in rigorous exploration of the truth can be called an academic, and as such may claim protection of academic freedom under the Constitution.
Moreover, the purpose of academic freedom throughout history has been to oppose those in power and resist the tyranny of the majority. If teachers and professors with administrative responsibilities and research personnel at public institutions express their academic opinions, they should not be limited by the standards of administrative neutrality, because such activities are academic and not administrative.
Article 2 of the act defines “public servants” as including “all full-time employees of public institutions and all administrative employees at public schools.”
Teachers are excluded from this definition in view of the fact that they have been governed by different laws and regulations since the Teachers’ Act of 1995.
What is incomprehensible is that, under the provisions of the new act, teachers’ academic freedom vanishes without a trace as soon as they engage in any administrative work.
If the distinction between “teachers or professors with administrative responsibilities at public schools” and “research personnel at public academic research institutions” on the one hand and ordinary public servants on the other is to bring any benefit, then the law should stress the protection of their academic freedom.
While teachers and professors with administrative responsibilities and research personnel at public institutions should enjoy the same freedom of speech as ordinary public servants, they should be given further protection with regard to their academic freedom. Article 17 of the act should therefore include exceptions designed to uphold academic freedom and avoid a situation in which people are intimidated into keeping silent.
The second problem is in the regulations of the act. The act gives insufficient consideration to the question of freedom of expression.
Article 9 states that: “Public servants shall not take part in the following political activities to support or not support any political party, other political organization or political candidate.”
Among the list of prohibited activities is the catch-all item 7: “other activities jointly prohibited by the Examination Yuan and the Executive Yuan.” This is too vague.
Items 1, 2 and 5 are fairly uncontroversial, since they relate to the use or misuse of public resources and official powers. However, items 3, 4 and 6, which ban the display of political symbols and participation in political meetings, rallies, petitions, advertisements and electoral activities, are likely to prove controversial.
Although there should be rules regarding the neutrality of public servants in performing administrative duties, if the regulations do not consider whether a public servant is taking advantage of his or her position and if they restrict decisions such as wearing badges or certain clothes expressing opinions out of office hours, then they constitute excessive infringement on freedom of speech.
If public servants take part in such activities after office hours as ordinary citizens without taking advantage of their title or position, then these limitations cannot be justified. If public servants are to be treated differently from other citizens, there must be a good reason, otherwise it constitutes infringement on the principle of equality as protected by Article 7 of the Constitution.
The act upholds rank and file public servants’ freedom to some extent by protecting them from political pressure from their superiors. At the same time, however, it restricts their freedom of speech.
The people who drafted this law did so with scant regard to the rights enshrined in the Constitution. The act has serious shortcomings in terms of its regulations and the scope of its application. While the name “Public Servants Administrative Neutrality Act” sounds benign, the law is marred by a lack of regard for human rights by its authors and those who supported it.
Hsu Yue-dian is a professor of law at National Cheng Kung University.
TRANSLATED BY JULIAN CLEGG
Source: Taipei Times - Editorials 2009/08
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