Rights
lawyer says Taiwan democracy under threat
By Jenny W. Hsu
STAFF REPORTER
Monday, Dec 15, 2008, Page 3
Taiwan still stands as a beacon of hope for the rule of law and democratic
development in Asia but recent government-related human rights violations have
caused its rays to shine less brightly, said David Kilgour, a Canadian human
rights lawyer, urging the public to closely monitor the administration in order
to safeguard the country’s democracy.
Kilgour, the vice president of the Taiwan-Canadian Friendship Group in the
Canadian parliament, a well-known international human rights lawyer and activist
and a former prosecutor, was one of the invited speakers at the International
Forum on the 60th Anniversary of the Universal Declaration of human Rights held
in Kaohsiung City on Thursday.
Citing the example of police brutality and riots last month during the visit of
Chinese envoy Chen Yunlin (陳雲林), Kilgour said many friends of Taiwan were
concerned about dramatic deteriorations in the rule-of-law, human dignity and
democratic practices in Taiwan in recent months.
“To tell people that they couldn’t wear ‘I love Taiwan’ T-shirts or hold the
national flag was ridiculous,” he said in an interview with Taipei Times.
“I hope President Ma Ying-jeou (馬英九), a Harvard-trained man, will understand
that democracy is more than about having elections every four years. Democracy
is about things such as allowing people to protest peacefully,” he said.
It has been reported that more than 100 people, including protestors, lawmakers
and policemen, were hospitalized for various injuries in protests during Chen’s
visit. One police officer had a stroke and a television reporter was badly
beaten.
Kilgour also voiced concerns over the “preventative detention” allowed by the
Taiwanese legal system in which a number of former Democratic Progressive Party
(DPP) figures, including former president Chen Shui-bian (陳水扁), were
incarcerated before a formal indictment had been handed down.
Quoting Ma’s Harvard law professor Jerome Cohen, Kilgour said preventative
detention should be rarely used, stressing it should only be invoked in
infrequent exceptions when the person is denied bail and has been deemed by the
court as a potential flight risk or presents the potential of colluding with
others.
He urged Minister of Justice Wang Ching-feng (王清峰) to promptly provide
substantive answers to inquiries raised by many legal scholars and human rights
activists both in Taiwan and abroad.
“It is surprising to many that Mr. Ma, a Harvard law graduate, does not
understand these things. I hope that he will show us from now on that he does
understand the nature of an open rule of law society,” Kilgour said.
He also urged Ma to disclose his reason why he objected to a visit by the Dalai
Lama, calling the rejection a “slight to the 23 million people in Taiwan.”
In a press conference with foreign media last month, when asked about a possible
visit by the much revered Tibetan spiritual leader, Ma said “the timing is not
right.”
The answer appeared to be an about face to the support he voiced for the Tibetan
movement in April during the presidential campaign.
Taiwan, along with the rest of international community, must not be discouraged
from condemning Beijing’s human rights abuses for fear of harming trade
relations with China, Kilgour said.
History has shown that countries that have publicly criticized actions have not
suffered strained economic ties with Beijing, citing Denmark, France and the
Netherlands for example.
“Whenever someone is told they were going to lose business if they meet the
Dalai Lama, those [threats] almost all prove to be bluffs later on,” he said.
Taiwan as a beacon of rule of law and democracy is “shining less brightly” now
and the government and the Chinese Nationalist Party (KMT), especially, must try
harder to polish Taiwan’s image especially given its totalitarian past, he said.
“Democracy is more than elections. It includes civil society and checks on any
government in office in any national capital,” Kilgour said. “The people of
Taiwan should keep an eye on the Ma and any other government you elect to ensure
that your hard-won democracy and dignity of all Taiwanese are strengthened,
rather than focusing on appeasing the party-state in Beijing.”
It’s ‘rule
of law,’ not ‘rule by law’
By Cao Changqing 曹長青
Monday, Dec 15, 2008, Page 8
China has a draconian law regulating re-education through labor. People can be
placed in this system without charge or due legal process. Re-education through
labor is given out as an executive order by the Public Security Bureau (PSB),
and the longest period an individual can be placed in re-education through labor
is four years. China is the only country in the world with such a law and it
does not look like it will be abolished any time soon.
Re-education through labor is a tool used by the Chinese government to punish
people that they view as “disobedient,” such as Falun Gong adherents, Christians
and dissidents.
Detainees in re-education centers are forced to do hard penal labor and the
limits placed on their freedom are the same as if they were in jail. People can
be taken into re-education through labor for reasons such as lack of proper
employment, undermining discipline, obstructing public order and public affairs
and for repeat offenders. These ambiguous regulations give the PSB huge amounts
of power, allowing it to issue re-education through labor to anybody it wishes
to punish.
Taiwan’s detention system effectively has the same effect as China’s
re-education through labor system and gives those in power the opportunity to
abuse their power. Any suspect that is “disobedient” or who displeases
prosecutors may be detained before charges are brought against them. The
“non-collusion clause” plays a major role in detention and prosecutors have the
power to decide who is and who isn’t likely to collude with others.
Although judges give out the final verdict, the non-collusion clause normally
makes it very difficult for judges to refuse prosecutor’s requests to detain a
suspect. The clause makes it extremely convenient for prosecutors to detain
anyone they wish, much in the same way as Chinese police can arrest anybody they
want and place them in a labor camp.
The detention of former president Chen Shui-bian (陳水扁) is a prime example of how
“collusion” can be used as an excuse to detain a suspect. When Chen was taken
into detention, other suspects in the case who could have colluded with him had
already all been detained. How could Chen have colluded with anyone? The
non-collusion clause has provided the Chinese Nationalist Party (KMT) with a
legal expedient for political payback and allowed them to insult and humiliate a
former president.
In the US, suspects are in effect permitted to “collude” openly. They are given
the right to silence and can be represented by their lawyers. In cases with more
than one suspect, the lawyers of each suspect can meet and discuss their plans
for representing their plaintiffs against the prosecutors. This is not done to
give suspects the opportunity to make up false statements, but to protect their
human rights as much as possible and to guard against the abuse of power by the
prosecutors.
The police in the US are only allowed to detain suspects for 48 hours, after
which they have to release the suspect if the prosecutor does not press charges.
When a prosecutor does press charges, the majority of suspects are granted bail
while they await a court date. In the US, each state has its own list detailing
bail prices for different crimes. Only murder suspects, those who could continue
to hurt people or escape are detained.
The longest possible period that somebody can be held in detention in Taiwan is
two months, which is extendable if deemed necessary. Former deputy minister of
the National Science Council Shieh Ching-jyh (謝清志), who once headed the nation’s
space program and was in charge of the launch of satellites, was detained for 59
days because the prosecutors were worried he would collude with others if he was
not in detention. On the very last day of Shieh’s detention, prosecutors applied
to have him detained even longer, citing the fact that a witness in the case was
still overseas and had not yet returned to Taiwan for questioning. The court of
first instance later found Shieh innocent.
In a new book on his detention, Shieh posed the question of whether he would
have had to stay in detention forever had that witness not returned to Taiwan.
Chu Chao-liang (朱朝亮), head of the Tainan prosecutors’ office, was the head
prosecutor in Shieh’s case and is also now a prosecutor on the Special
Investigation Panel (SIP) investigating Chen’s alleged money laundering. Chu
once told reporters that “Suspects in a certain case investigated by prosecutors
need not be guilty, we can use the investigation process to teach them a
lesson.”
When somebody shows off by making comments about how they have the power to give
people lessons and abuse their human rights, it is really hard to gauge what
sort of understanding they have of the rule of law in a democratic nation.
The US is a country characterized by the rule of law, and the law is placed
above everything else. The US has special mechanisms in place to guard against
the abuse of power by the government and other law enforcement agencies and to
protect the rights of each individual.
China is a country that is “ruled by law.” From the numerous reforms carried out
by Shang Yang (商鞅) during the Warring States period through to the Chinese
Communist Party’s administration, Chinese leaders have always viewed the law as
a tool for controlling people, and ultimately, maintaining rule.
Judging from the problems plaguing Taiwan’s judicial system, it seems we have
inherited more of China’s “rule by law” than the US’ “rule of law.”
Cao Changqing is a writer based in the
US.