Study on the Constitutionality of Compulsory Apology in Civil and Criminal Laws
Date Issued
2010
Date
2010
Author(s)
Wu, Chia-Hua
Abstract
Most Scholars take no notice of the constitutionality of compulsory apology, although some have discussed this issue, but they focus on nothing but the constitutionality of compulsory apology in the civil law, rather than in the criminal law. Although Judicial Yuan (hereinafter J.Y) Interpretation No. 656 which released on April 3rd, 2009 have raised many discussions, but those related essays still do not figure out the relationship between freedom not to speak and freedom of conscience, and whether compulsory apology really infringe offender’s freedom not to speak or freedom of conscience. In this thesis, I will first analyze J.Y. Interpretation No. 656 and find out the controversies over the Honorable Justices of J.Y. Sebsequently, I will review the constitutionality of compulsory apology in the civil and criminal laws.
In my opinion, “compulsory apology” only ask offender to apologize for ritual, not for wholehearted. But no matter how we define apology, the core meaning of apology is “to admit mistakes”. Therefore, ask an offender to publish apology on the newspaper, broadcast apology through the media, and write a letter of apology are types of compulsory apology in the civil law; a verbal apology, write a letter of apology or confession and publish apology on the newspaper are types of compulsory apology in the criminal law.
In addition, the opinion of J.Y. Interpretation No. 656 which distinguish “shaming compulsory apology” from “non-shaming compulsory apology”, and believed that the former is unconstitutional, and the latter is not, seems misunderstand the discussions about “shaming sanctions” in the U.S. criminal law. Besides, it’s impossible and unnecessary to tell the difference.
I believed that compel an offender to apologize is to force him to “say sorry” and “admit mistakes”, therefore, it might infringe his freedom not to speak and freedom of conscience. But since the foundation of freedom not to speak is freedom of conscience, it is obvious that a government action which infringes people’s freedom not to speak simultaneously infringe his freedom of conscience. Therefore, when a government action infringes one’s freedom not to speak and freedom of conscience, there is no reason to review freedom of conscience which is fuzzy and not written in our constitution. Besides, J.Y. Interpretation No. 567 believed that freedom of conscience should be protected absolutely, the same as how human dignity is protected. That is to say, the government cannot infringe freedom of conscience on any grounds. Therefore, civil rights which are written in our constitution should be applied prior to freedom of conscience. Thus, in my point of view, a compulsory apology is to force someone to admit that his judgment was incorrect, which is a kind of compulsion of opinions. Therefore, we should adopt “strict scrutiny test” when examining a compulsory apology which is forced by the state.
The purpose of compulsory private apology in civil law is not to repair victim’s reputation, but to revenge offender. Thus, there are no any relationship between means and goal. Furthermore, repair victim’s reputation do not seems like a compelling interest for compulsory apology in the civil law. Even if we admit it is constitutional on the review of goal, we still can find less restrictive means to achieve the goal, for instance, publish correction announcement or verdict in the media. But because legislators suppose that compulsory apology is an equitable measure to repair victim’s reputation, therefore, related provisions are over-inclusive. In my opinion, we should exclude compulsory apology as an equitable means to repair victim’s reputation in civil law.
On the other hand, the purpose of compulsory apology in criminal law is “restorative justice”, it’s truly a compelling interest, but because compulsory apology does not need wholeheartedness, it could not repair the relationship between victim and offender. Thus, the relationship between means and goal, do not fit the goal-and-means analysis. At last, I will talk about liberalism and republicanism’ attitude towards compulsory apology, but because of the lack of time and energy doing this research, further discussion about this part have to wait until the future.
Subjects
Compulsory Apology
the Right Not to Speak
Freedom of Thought
Freedom of Conscience
Shaming Sanction
Restorative Justice
Compelled Speech
SDGs
Type
thesis
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