Government to keep watching News-in-Motion
　

RATED R: The ‘Apple Daily’ newspaper promised to create a rating system for its online service. The animated news has been criticized as being graphic and violent
　

By Ko Shu-ling
STAFF REPORTER
Sunday, Nov 29, 2009, Page 1

Taipei Mayor Hau Lung-bin (郝龍斌) yesterday said the government would continue monitoring the Apple Daily newspaper’s online service News-in-Motion after the paper’s management promised to introduce a ratings system for the controversial animated news feature.

Hau said his decision to get tough on the Next Media Group was aimed at making new media outlets consider rating their content.

While the central government has yet to take action, Hau yesterday urged it to “continue to take the matter seriously.”

The Chinese-language United Daily News reported yesterday that the Presidential Office had complimented the city on its swift response.

The city, however, has received a mixed response to its actions. Hau yesterday said he welcomed public scrutiny.

“I am open to criticism as all policy is subject to public scrutiny,” he said.

He said it was the appropriate course of action now that the Apple Daily had decided to classify the content, adding that it proved that the city was right.

The city will continue to monitor News-in-Motion, he said, to ensure that it conforms to the Children and Juveniles Welfare Act (兒童及青少年福利法).

Hau made the remarks while attending an annual prayer breakfast meeting in Taipei yesterday.

The Apple Daily — published by Hong Kong tycoon Jimmy Lai (黎智英) — launched the feature last week in a trial run as the Apple Group expands from print to TV.

The service is only accessible to readers who pay a fee.

It uses animated graphics to reconstruct stories that appear in the newspaper and can also be viewed by cellphone users who scan a bar code printed in the newspaper. Some of the stories feature sexual content and violence.

The Taipei City Government fined Next Media on Wednesday and Thursday for violating the media classification regulations in the Children and Juveniles Welfare Act.

In addition to the two NT$500,000 fines, the city government asked public schools to stop subscribing to the paper and banned teenagers under 18 years old from borrowing the paper in public libraries.

Also on Friday, Minister of Education Wu Ching-chi (吳清基) said News-in-Motion had been barred from the Taiwan Academic Network (TAnet) to protect school children and youngsters from obscene and harmful content.

TAnet is the network covering all academic and educational establishments.

Wu said his ministry had also asked all county and city governments to instruct schools to advise students to stay away from the site’s “scandalous and polluted media content.”

“Any obscene or harmful information, not just News-in-Motion, will be banned from TAnet,” the minister said.

The paper hit back on Friday, its front page accusing the city government of exercising “martial law” and threatening to sue it for “trampling on the freedom of the press.”

DPP announces mass Dec. 20 rally against ECFA talks

STAFF WRITER, WITH CNA
Sunday, Nov 29, 2009, Page 3

The Democratic Progressive Party (DPP) will hold a mass rally in Taichung City on Dec. 20 to protest against the fourth round of negotiations between Taiwan and China, DPP officials said yesterday.

The fourth round of talks between Straits Exchange Foundation (SEF) Chairman Chiang Pin-kung (江丙坤) and Association for Relations Across the Taiwan Straits (ARATS) Chairman Chen Yunlin (陳雲林) will take place in Taichung next month. The government has yet to announce the exact date and venue for the meeting.

The DPP said the protest would allow people to express their views about the government’s plans to sign an economic cooperation framework agreement (ECFA) with China.

The DPP said the protest will serve to express disapproval against the “closed door” style of negotiations adopted by the Chinese Nationalist Party (KMT) and the Chinese Communist Party since President Ma Ying-jeou (馬英九) came to power last year.

Chen Chi-mai (陳其邁), a senior DPP official, said that as the largest opposition party in Taiwan, the DPP must demonstrate the full force of Taiwanese people’s opposition to an ECFA.

Chen said the details of the protest — such as its size and location, would be decided after the Dec. 5 local government elections. The elections are seen as a gauge of public opinion about the ruling party’s and Ma’s policies to promote closer ties with China.

Lin Chia-lung (林佳龍), another DPP official, said that as signing an ECFA would hurt various industries and groups in Taiwan, the DPP should make it an international issue and let the international community understand there is a different point of view on the matter.

Supporters of an ECFA, including Ma, have said it is necessary to ensure Taiwan does not lose out as China forms free-trade pacts with other countries.

Earlier this month, Minister of the Interior Jiang Yi-huah (江宜樺) said the government would take all necessary security measures to make sure that the SEF-ARATS negotiations are held without disruption.

Ma prays to God for protection
　

GOD HELP US: The president said that the nation would express its goodwill to the international community by donating locally produced swine flu vaccines
　

By Ko Shu-ling
STAFF REPORTER
Sunday, Nov 29, 2009, Page 3
　

At the annual national prayer breakfast yesterday, President Ma Ying-jeou (馬英九) pledged to establish a clean, honest, diligent and sympathetic government.

Praying that God would protect Taiwan and guard its people, Ma said he agreed with Reverent Samuel Shaw (蕭祥修) that where there is fairness, there is strength.

“We hope Taiwan’s existence will encourage change in mainland China, peace in the region and justice in the international community. That is a major reason for the very existence of our country. It is also the principle value of our Constitution,” he said at the ninth national prayer breakfast in Taipei.

The event, co-organized by the Bread of Life Christian Church in Taipei and other churches, was co-initiated by Reverend Kao Chun-ming (高俊明) in 2001 after he attended a similar prayer breakfast event in South Korea.

Kao decided to start a similar event in Taiwan where politicians and business leaders can set aside their differences and join in prayer for the country’s common good.

Speaking in front of a large banner reading “Rise up and Shine — Building a Righteous, Merciful and Peaceful Country,” Ma said that in the past year, the country has transformed from a troublemaker into a problem solver and peacemaker.

“We not only create peace across the Taiwan Strait, but also have an opportunity to enhance mutual trust with our neighboring countries,” he said.

Ma thanked church groups for their compassion and contribution to the relief efforts following Typhoon Morakot.

The disaster claimed more than 700 lives after hitting central and southern parts of the country in August.

To show the country’s gratitude to the world, Ma said the government would donate locally manufactured swine flu vaccines to the WHO after the epidemic has peaked.

“This is the essence of compassion, righteousness and peace,” he said.

Quoting Leviticus 25:26, Ma said: “Consecrate the fiftieth year and proclaim liberty throughout the land to all its inhabitants. It shall be a jubilee for you; each one of you is to return to his family property and each to his own clan.”

As 2011 will mark the centennial anniversary of the founding of the Republic of China, Ma promised to a government that is clean, honest, diligent and emphatic.

“It is a big challenge,” he said, “but we will begin with humility and start from gratefulness.”

Reverend Andrew Kou (寇紹恩), who lead the prayer for Ma, described Ma as an “honest president,” adding that he prayed that Ma’s honesty would help his government and the country become honest.

Kou said many times they felt “powerless” and he believed that Ma sometimes felt “powerless” too. He prayed that Ma would have strength, because he said Ma’s position would need a lot of strength and “ability.”

Kou also prayed that Ma would have “wisdom and joy” and better understand the grace of God.

Academic warns of shift in US’ PRC policy

STAFF WRITER, WITH CNA
Sunday, Nov 29, 2009, Page 3

The US has been more accommodating to Beijing under US President Barack Obama than his predecessors because Washington needs China more than China needs the US, an expert on China said.

Lin Chong-pin (林中斌), former Mainland Affairs Council vice chairman and a professor at Tamkang University’s Institute of International Affairs and Strategic Studies, said Obama’s more flexible attitude was reflected in his failure to mention human rights or freedom during his meeting with Chinese President Hu Jintao (胡錦濤) earlier this month.

While addressing students in Shanghai, Obama also failed to mention the Taiwan Relations Act, which regulates unofficial relations between the US and Taiwan and requires the US to sell defensive arms to Taiwan, Lin said.

“This shows that the United States wants more from China than vice versa,” he said, adding that the Obama-Hu meeting was a watershed in relations between the two countries.

A joint statement on the Obama-Hu meeting posted on the White House Web site, he said, included the word “cooperation” more than 40 times.

On issues ranging from Pakistan, North Korea, Iran’s nuclear weapon program and global warming, Washington needs assistance from China, but Beijing has nothing to ask from Washington, he said.

Tracing the evolution of the two countries’ strategic mindsets, Lin said Washington’s approach has gone from engagement to containment, engagement with containment and is now entering an era of “adjust and accommodate.”

This approach requires an adjustment on Washington’s part, with the belief that an emerging China is a positive force, Lin said.

This was why former US deputy secretary of state Robert Zoellick used the term “stakeholder” to describe US-China relations, he said.

Faced with the strategic shifts between the US and China, Lin said that if Taiwan tilts toward Washington, it will be unfavorable to Taiwan’s economy, but if it tilts toward Beijing, it will be unfavorable to Taiwan’s security.
　

Obama’s self-defeating Asia tour
　

By John Bolton
Sunday, Nov 29, 2009, Page 8

‘Obama simply seems unable or unwilling to defend US interests strongly and effectively.’

US President Barack Obama’s first visit to Asia since his inauguration was one of the most disappointing trips by any US president to the region in decades, especially given media-generated expectations that “Obamamania” would make it yet another triumphal progression. It was a journey of startlingly few concrete accomplishments, demonstrable proof that neither personal popularity nor media deference really means much in the hard world of international affairs.

The contrast between Asia’s reception for Obama and Europe’s is significant. Although considered a global phenomenon, Obamamania’s real center is Europe. There, Obama reigns as a “post-American” president, a multilateralist carbon copy of a European social democrat.

Asians operate under no such illusions, notwithstanding the “Oba-Mao” T-shirts briefly on sale in China. Whatever Obama’s allure in Europe, Asian leaders want to know what he means for peace and security in their region. On that score, opinion poll ratings mean little.

What the president lacked in popular adulation, however, he more than made up for in self-adulation. In Asia, he labeled himself “America’s first Pacific president,” ignoring more than a century of contrary evidence. The Pacific has been important to the US since the Empress of China became the first trading ship from the newly independent country to reach the Far East in 1784. Former US president Theodore Roosevelt created a new Pacific country (Panama) and started construction on the Panama Canal to ensure that the US Navy could move rapidly from its traditional Atlantic bases to meet Pacific challenges.

Former US president William Howard Taft did not merely live on Pacific islands as a boy, like Obama, but governed several thousand of them as governor-general of the Philippines between 1901 and 1903. Former US president Dwight Eisenhower served in Manila from 1935 to 1939, and five other presidents wore their country’s uniform in the Pacific theater during World War II — two of whom, John F. Kennedy and George H.W. Bush, very nearly perished in the effort.

But it was on matters of substance where Obama’s trip truly was a disappointment. On economics, the president displayed the Democratic Party’s ambivalence toward free trade, even in an economic downturn, motivated by fear of labor-union opposition. On environmental and climate change issues, China, entirely predictably, reaffirmed its refusal to agree to carbon-emission limitations, and Obama had to concede in Singapore that the entire effort to craft a binding, post-Kyoto international agreement in Copenhagen had come to a complete halt.

On US national security, Obama came away from Beijing empty-handed in his efforts to constrain both the Iranian and North Korean nuclear weapons programs, meaning that instability in the Middle East and East Asia will surely grow. In Japan, Obama discussed contentious issues like US forces based on Okinawa, but did not seem in his public comments to understand what he and the new Japanese government had agreed to. Ironically, his warmest reception, despite his free-trade ambivalence, was in Seoul, where South Korean President Lee Myung-bak has reversed a decade-long pattern by taking a harder line on North Korea than Washington.

Overall, Obama surely suffered his worst setbacks in Beijing — on trade and economics, climate change and security issues. CNN analyst David Gergen, no conservative himself, compared Obama’s China meetings to Kennedy’s disastrous 1961 encounter with Soviet leader Nikita Khrushchev in Vienna, a clear indicator of how poorly the Obama visit was seen at home. The perception that Obama is weak has already begun to emerge even in Europe, for example with French President Nicolas Sarkozy, and if it emerges in Asia as well, Obama and the US will suffer gravely.

Many media analysts attributed the lack of significant agreements in Beijing to the “rising China, declining America” hypothesis, which suits their ideological proclivities.

But any objective analysis would show that it was much more Obama’s submissiveness and much less a new Chinese assertiveness that made the difference. Obama simply seems unable or unwilling to defend US interests strongly and effectively, either because he feels them unworthy of defense, or because he is untroubled by their diminution.

Of course, most Americans believe they elect presidents who will vigorously represent their global interests, rather than electing Platonic guardians who defend them only when they comport with his grander vision of a just world. Foreign leaders, whether friends or adversaries, expect the same.

If, by contrast, Obama continues to behave as a “post-American” president, China and others will know exactly how to take advantage of him.



John Bolton is a senior fellow at the American Enterprise Institute.

Policy of truth
　

A case brought by four Taiwanese against Hong Kong’s Immigration Department has set a legal precedent in the territory with implications for government accountability, but the jury is still out as to whether it will actually change the government’s behavior

By Celia Llopis-jepsen
STAFF REPORTER
Sunday, Nov 29, 2009, Page 13

VIEW THIS PAGE

VIEW THIS PAGE

When lawyer Theresa Chu (朱婉琪) and three other Taiwanese filed for a judicial review in 2003 after the immigration authority blocked them from entering Hong Kong, they hoped to prove that the government had discriminated against them on the basis of religion — namely, Falun Gong, the spiritual movement banned in mainland China, but not Hong Kong.

Chu and her co-applicants were among 80 Taiwanese denied entry to Hong Kong in February 2003, when they planned to attend a Falun Gong conference. Although they held valid visas, immigration officers stopped them at Hong Kong International Airport and put them on return flights to Taiwan.

The applicants in Chu Woan-chyi and others v. Director of Immigration believe pressure from China was behind the incident. But under the “one country, two systems” model, Hong Kong’s government agencies should follow Hong Kong law, under which Falun Gong is legal — and discrimination on the basis of religion is not. The immigration authority denies the group’s religious affiliation played a role in its decision, claiming instead that the Taiwanese in question posed “security risks to the HKSAR [Hong Kong Special Administrative Region].”

Six weeks after being denied entry, Chu and three others launched a court battle that lasted six-and-a-half years. On Sept. 4, they lost the latest round and chose not to appeal, having lost hope of a victory.

But they did not lose over the question of whether immigration authorities wrongfully barred their entry. In fact, the Court of Appeal of the High Court of Hong Kong didn’t even answer that question.

Instead, the ruling focused on the legal principle known as the duty of candor.

When the legality of a government action is being tested in court, the government, under the duty of candor, has an obligation to be honest with the court and provide it with the evidence needed to scrutinize its actions. But in Chu Woan-chyi and others v. Director of Immigration, the government breached that duty, the Court of Appeal judges ruled on Sept. 4, and left the court with no evidence to reach a conclusion — something the presiding judge called “a most extraordinary state of affairs.”

The Court of Appeal’s judgment seems at first to be a scathing censure of the government’s behavior in the case — but it is a ruling with a surprise twist that has legal watchdog Hong Kong Human Rights Monitor concerned that the government has ultimately benefited from flouting its obligation.

Chu’s case started at the Court of First Instance of the High Court, directly under the Court of Appeal. To review the Immigration Department’s actions, the court needed documentation detailing why the plaintiffs were repatriated in 2003 — documents it never received. The department cited “security risks” for blocking the plaintiffs’ entry to Hong Kong, but did not provide documents supporting this assertion.

The court nevertheless ruled in the government’s favor, finding that Chu and her fellow plaintiffs failed to prove religious discrimination.

The case took a different turn at the Court of Appeal. The judges, led by Chief Judge Geoffrey Ma (馬道立), said the government had since the case’s outset repeatedly breached its legal duty of candor, which, Ma writes in the Court of Appeal’s judgment, is crucial to “good governance, and proper and transparent administration,” and is rarely violated. Examining this breach of candor therefore became their key task, the judges wrote in their ruling.

Over dozens of pages in the Sept. 4 judgment, Ma dissects the claims made by the government agencies involved in the case — the Immigration Department, the Security Bureau and the Department of Justice — and reveals glaring contradictions.

According to the Sept. 4 judgment, over the course of the judicial review, the defense counsel gave conflicting explanations for failing to produce evidence, variously saying or leading the court to believe: that documents related to the case could not be disclosed because of their sensitivity; that the Department of Immigration had destroyed all related documents but that other government agencies still had related documents; that the other agencies had destroyed their documents as well; or that no other agencies ever had any documents related to the case. (No government officials appeared in court. Their lawyer received instructions from them in writing and at times presented written statements from them.)

In a phone interview, Hong Kong legislator Albert Ho (何俊仁), chairman of the Democratic Party, recounted the requests made by his law firm Ho, Tse, Wai & Partners (which represented Chu and the others at the Court of First Instance) that the government submit evidence in the case — something that should not have been necessary because, as Ma notes in the Court of Appeal’s judgment, “the respondent [government] in such proceedings is expected to, and usually does, discharge its duty of candour.”

“In the Court of First Instance we pressed quite hard for discovery [compulsory disclosure of evidence], but the government did not give a candid answer. In fact, it gave inconsistent explanations,” said Ho, who himself was denied entry to Macau last December for unclear reasons when he planned to observe a demonstration there.

“Sometimes [the defense counsel] said the [evidence] was in files held by the Immigration Department and other government departments, and that this matter [the security risks posed by the plaintiffs] was known to officials at high levels,” Ho said. But when pressed for the documents, the counsel eventually “said the files had all been destroyed.”

At the last hearing at the Court of First Instance on March 8, 2007, the presiding judge expressed dismay and incredulity at the government’s failure to submit hard evidence.

“Is it credible that suddenly all the Government files and papers have been washed clean?” the judge asked.

The answer, according to the defense, was yes.

The defense counsel returned from the lunch break to say he had consulted “the highest level of those responsible,” and that all documents at all government agencies related to the incident had been destroyed four years earlier, before the case had even reached court.

Court of First Instance Judge Michael Hartmann asked: “Why did we have to go through all of this in the first place then? Why not simply have said [back then]: all of this material ... it’s destroyed.”

But, Ma notes in the Court of Appeal’s judgment, officials from the Department of Immigration and the Security Bureau submitted affidavits claiming that the four Taiwanese posed “security risks.” What did they base their knowledge on if not documents, he wonders.

Ma also says the government repeatedly implied documents existed by declining to disclose them without any “intimation of the non-existence of relevant documents.” For example, the court had been told earlier that documents in the case were too sensitive to show the court — a claim called “public interest immunity.”

Even if the documents had been destroyed, as claimed in March 2003, there is cause for concern. In Hong Kong, the legality of a government action may be appealed in court up to three months after that action. This destruction date would mean potential court evidence was eliminated well before the deadline for seeking judicial review.

Ma’s conclusion is straightforward:

“[T]he duty of candour has been breached,” he writes. “Even to this day, over six years since the date the 4 Applicants were denied entry, it is still unclear just what was the basis for this statement [that they posed security risks], nor is it clear as to whether any documents exist to support it. It is a most extraordinary state of affairs.”

Ironically, although the judges ruled that the government breached the duty of candor, they still found in its favor. Yet in Hong Kong’s legal system, if the government breaches the duty of candor, the court is expected to rule against it because it hindered the investigation.

“Normally, where the duty of candour has been breached in such a way in relation to the disclosure and presentation of relevant facts, the consequence in judicial review proceedings [as in other proceedings] is that the court is entitled to draw adverse inferences,” Ma explains in the judgment.

But Ma declines to “draw adverse inferences” in this case. He cites two key reasons for finding in the government’s favor.

Ma says the Taiwanese applicants should have pushed harder for evidence in the case: “If the Applicants had conducted themselves differently by, for example, making the necessary discovery applications or applying for cross-examination of various deponents [the government officials who submitted written statements to the court], these judicial proceedings would have taken a much different course and, depending on what evidence emerged, the court may have been driven to arrive at a quite different result.”

The Taiwanese should have applied to cross-examine Acting Security Bureau Secretary Timothy Tong (湯顯明) at the Court of First Instance, Ma says.

Ma also says Ho, Tse, Wai & Partners should not have narrowed their request for documents from the government in July 2006 from all “relevant documents” to the documents that Tong and Commander of the Airport Division Choy Tak Po relied on to make statements to the court.

However, Ma ordered each side to pay its own court costs rather than making Chu and the other applicants pay the government’s legal fees. Ma says in the ruling that this is because of the government’s breach of candor.

In Hong Kong, which uses a common law system modeled on England’s (in which court precedent, not codified statutes, comprises the bulk of the law), Ma’s judgment could have lasting implications.

Considering the severity of the criticism, the ruling in the government’s favor is surprising, Ho said.

Ho called the ruling “disappointing,” but said the strength of the court’s position on candor in the ruling may still have potential for future judicial reviews.

“We look forward to using this judgment in future proceedings,” Ho said. “The judgment laid down certain benchmarks: The government should at least keep files until a case is complete [and they have] this duty of candor.”

“I hope this is intended to be a final warning to the government that next time they cannot expect to get away so easily,” he said. “But maybe this is just wishful thinking.”

Law Yuk-kai (羅沃啟), director of Hong Kong Human Rights Monitor, said the “court has adopted a very generous approach to the government.”

“It’s clear the government has breached duty of candor and destroyed papers [that could have been evidence in court], or at least lied,” Law said in a phone interview. “In those circumstances, the court is reasonably expected to rule against the government.”

Law said Ma’s reasons constituted a “very small margin” to justify ruling in the government’s favor despite a breach of candor. He had hoped to hear the Court of Final Appeal deliberate the matter: “I think we need a clarification by the higher court.”

Law, whose organization is a non-partisan, non-governmental watchdog with a focus on constitutional and international human rights law, said the government had ultimately benefited by not presenting evidence. “It is very undesirable to have a ruling in which a government party benefits from destroying evidence ... If that is allowed to happen, there may be future cases,” he said.

Law said the judgment has “positive sides” because the judge said that the government has “a responsibility to be frank to the court.” However, Law added, “I think justice could better be served by ruling against the government in this case. It would also help improve our government administration by telling the authorities that they cannot benefit from wrongdoing.”

For Chu and the other Taiwanese, the ruling was disappointing, but not surprising. Chu says Ma’s judgment in this case is misleading. His reasons for finding in the government’s favor were taken out of context, she says.

“Why didn’t we cross-examine [Tong]?” Chu explained. “The legal purpose of cross-examining is to attack the credibility of an affirmation [written statement].” But at the Court of First Instance, the judges were skeptical of Tong’s statement because the documents in the case had allegedly been destroyed years before, she said. “Our counsel said that if we applied to cross-examine, the court would turn it down and tell you, you don’t have to. In the experience of those senior barristers, the judges used very strong wording on the affirmation. It was quite sufficient.”

As for narrowing the request for government documents in 2006, Chu said Ho, Tse, Wai & Partners had “asked the government, the Department of Justice, to disclose all documents” related to the 2003 incident. “They refused, but we didn’t give up.” Instead, they tried different tactics to seek evidence.

Chu and the others have decided not to appeal to the Final Court of Appeal, where they feel there is little chance of victory. If they were to lose, the court could order them to pay the Immigration Department’s legal costs. The respondents were also discouraged by media reports that Ma may become chief justice of the Final Court of Appeal next year, when the current chief justice, Andrew Li (李國能), retires. They feel that with Ma heading the court, the chances of a different ruling would be limited.

Furthermore, the goal of filing a judicial review was obtaining a ruling on the question of religious discrimination. One of Chu’s main concerns is the alleged existence of a “blacklist” of Falun Gong practitioners used by Hong Kong immigration authorities to block them from entry at “sensitive times,” such as when protests or conferences are planned in Hong Kong.

But there was no guarantee that the Final Court of Appeal would have addressed that question. It might have focused on the government’s breach of candor, as the Court of Appeal did.

As Chu sees it, in the end, the government got away both with breaching candor and blocking any investigation into the February 2003 incident and the blacklist.

At the end of his judgment, Ma says the government got off lightly. After dismissing the appeal, he writes: “I conclude this judgment by saying that the Respondent [government] can consider himself extremely fortunate in these proceedings.”