政黨結社自由與言論自由之再探

Revisiting the Freedom of Association and Freedom of Speech of Political Parties

正義，其實是一個多義的概念，因此在界定上勢必應當小心謹慎，尤其當政府嘗試透過立法的手段，欲將主觀上所認定的正義予以實踐，就會很容易淪於主觀恣意的操作。尤其在自由與民主的社會下，絕對的自由固然形成失序，但光譜的另外一端自然就是獨裁與專制。甚至，面對時下對於民主、法治與正義的主張似乎成了一個時興的口號時，因此有著第一波、第二波、第三波民主之強調；也有著形式法治國與實質法治國之界分，更不用說還有著對於何謂正義的爭辯。凡此種種，便成了享有話語權的人士所能左右與支配的對象。因此，相對於採取防衛性民主之概念而建構出我國對於政黨結社與政黨言論自由基本規範，進而產生可能有之爭議，對於多元民主的應有認識，即應當作為比較參考的重要基礎，因為，面對前述對於各該抽象概念之認識與解釋，均容有被操作的空間。誠如在法治國原則「實質」與否之爭論上，與其主觀式地否認我國尚非係屬民主法治國家，反倒應當檢視我們對於自由真諦的應有認識為何，如此方能重新確認我們所要追求的結社自由與言論自由之保障為何，而不是在整個憲政體制的運作下，使得政黨結社自由與言論自由之應有的保障、乃至於應有的限制，淪於個案判斷上的不確定，造成所謂的「實質法治國原則」會隨著政黨輪替而有不同的內涵，如此反倒折喪了憲法對於基本權保障的應有尊嚴，失卻了法律對於正義實踐應有的內涵，更埋藏了憲政運作因著政黨輪替而存在著不可預見的危機。 Justice is a contested concept; therefore, we should be cautious when trying to define the true meaning of it. This is especially true when the ruling party, or the leader of the government, aims to utilize (or manipulate) the idea of justice, even trying to include it in the meaning of democracy and rule of law, which is based on his/her own understanding turning it into practical law via the the legislative under his/her control. This would be a threat to our modern democratic society. Nowadays, so-called “transitional justice,” “substantive constitutional state,” and “defensive democracy,” which are supposed to be complicated ideas, seem to have become only fashion slogans. Moreover, the one with the authority to have the final say will be in charge of defining these ideas and their meanings. Therefore, we should have a clear understanding of the meaning of “Pluralist Democracy” in order to also have a better understanding of the rule of law and to avoid constraints on the freedom of association and speech for political parties, except in cases where a clear idea of defensive democracy has been adopted when constructing a fundamental legal structure. The more we understand the rule of law, the better it will be for our democracy. Since the ruling party could easily manipulate the idea of “transitional justice”, and the so-called principle of a “substantive constitutional state”, the protections for the rights of association and speech for political parties could be put at risk in our modern democratic society. In sum, instead of emphasizing the fashion slogans and the principles that have uncertain meanings, we need to fulfill the fundamental values of the freedom of association and speech for political parties, based on the rule of law, not the rule of men.

Justice is a contested concept; therefore, we should be cautious when trying to define the true meaning of it. This is especially true when the ruling party, or the leader of the government, aims to utilize (or manipulate) the idea of justice, even trying to include it in the meaning of democracy and rule of law, which is based on his/her own understanding turning it into practical law via the the legislative under his/her control. This would be a threat to our modern democratic society. Nowadays, so-called “transitional justice,” “substantive constitutional state,” and “defensive democracy,” which are supposed to be complicated ideas, seem to have become only fashion slogans. Moreover, the one with the authority to have the final say will be in charge of defining these ideas and their meanings. Therefore, we should have a clear understanding of the meaning of “Pluralist Democracy” in order to also have a better understanding of the rule of law and to avoid constraints on the freedom of association and speech for political parties, except in cases where a clear idea of defensive democracy has been adopted when constructing a fundamental legal structure. The more we understand the rule of law, the better it will be for our democracy. Since the ruling party could easily manipulate the idea of “transitional justice”, and the so-called principle of a “substantive constitutional state”, the protections for the rights of association and speech for political parties could be put at risk in our modern democratic society. In sum, instead of emphasizing the fashion slogans and the principles that have uncertain meanings, we need to fulfill the fundamental values of the freedom of association and speech for political parties, based on the rule of law, not the rule of men.