Experts call pacts ‘window dressing’
　

WET FISH: Academics at a cross-strait forum said President Ma Ying-jeou’s zest for improved cross-strait relations was a result of his promising too much to get elected
　

By Ko Shu-ling
STAFF REPORTER
Monday, Nov 02, 2009, Page 1

The four agreements signed by Taipei and Beijing last November were nothing but “window dressing,” experts attending a cross-strait forum said yesterday, urging the government to pressure Beijing to quit blocking other countries from signing free-trade agreements (FTA) with Taiwan as both sides mull an economic pact.

Wednesday will mark the agreements’ first anniversary after they were signed on Nov. 4 last year by Straits Exchange Foundation Chairman Chiang Pin-kung (江丙坤) and his Chinese counterpart, Chen Yunlin (陳雲林), president of the Association for Relations Across the Taiwan Strait. The agreements addressed direct sea links, daily charter flights, direct postal services and food safety.

National Taiwan University economics professor Kenneth Lin (林向愷) told the forum that the government led by President Ma Ying-jeou (馬英九) advertised only the benefits signing an economic cooperation framework agreement (ECFA), without explaining its negative impacts.

“Once an ECFA is signed and implemented in the ‘economic zone on the west coast of the Taiwan Strait (海西經濟區)’ as Beijing wishes, Taiwan’s economy is bound to be hollowed out like that of the outlying islands of Penghu,” he said at a forum held by the Taiwan Thinktank in Taipei to review the four agreements’ effectiveness.

The think tank is generally regarded as leaning toward the pan-green camp.

“While the Ma administration is making aggressive efforts to improve economic relations with Beijing, they should set the precondition that Beijing does not stop other countries from signing FTAs with Taiwan,” Lin said.

Lin also urged the government to let the public vote on the necessity of an ECFA, saying it would only work to the administration’s advantage at the negotiating table if it passes.

Lin said the four agreements denigrated Taiwan’s sovereignty and were based on China’s interests rather those of Taiwan.

The air transportation links, for example, were defined as “special aviation routes” and bar foreign aviation firms from taking part, he said. The result is a “hub-and-spoke distribution network,” he said, with China as the hub and cargo and passengers passing through it on their way to multiple destinations.

While the government set its eyes on Chinese tourists, the increase in their number not only affects the quality of tourism, but also crowds out visitors from other countries such as Japan, he said.

“But we don’t see the government address the problem,” he said. “The government firmly believes in free trade, but is free trade between Taiwan and China really good for us?”

Tung Li-wen (董立文), a professor at the Graduate School of Public Security at ­Central Police University, said that despite the agreements, Taiwan must “beg” China to honor them when it doesn’t.

“The two sides will sign more [agreements] in the future, including an ECFA and financial memorandums of understanding. But what we see so far is that China takes a ‘salami slicing’ approach to deal with the agreements it has signed,” he said.

He added that Ma’s zest to improve economic ties was the result of making too many promises before the presidential election in an effort to humiliate the Democratic Progressive Party (DPP) after taking office.

“China’s communist regime is good at fooling people, and the Ma administration’s job is cheating its people,” he said.

Tung said that while both sides had signed the “Kinmen Accord” in 1991 to extradite illegal immigrants and criminals to the other side of the Taiwan Strait, “China extradited only when it pleased them and turned up its nose when it did not.”

Both sides signed an agreement on cross-strait cooperation to fight crime in June, but no criminals have been sent back to Taiwan through the mechanism, he said.

China sees signing the agreements as one thing and implementing them as another, Tung said. For example, Tung said smuggling was still rampant.

In addition, China may agree to one thing but obstruct it through technical means, Tung said.

While China agrees to allow more tourists to visit Taiwan, Taiwanese travel agencies must be approved by China to handle the matter, he said, noting that Taiwanese vessels can transport cross-strait goods only if they are registered in Hong Kong.

Meanwhile, Chen Ming-sheng (陳明生), assistant to DPP Legislator Tien Chiu-chin (田秋堇), told the forum that their long-term tracking of China’s handling of the melamine controversy suggested Beijing was not serious about addressing the problem.

Chen was referring to the public health scare in October last year caused by melamine-contaminated imports from China.

Twelve Taiwanese firms have asked for a total of NT$700 million (US$21 million) in compensation from Duqing, the Chinese supplier of a contaminated non-dairy creamer, and from Sanlu, the now-bankrupt dairy firm that also sold melamine-contaminated milk powder.

China has not responded, even though food safety was included in the the four pacts signed last year.

China behind Cairo barring Lu: DPP
　

By Ko Shu-ling
STAFF REPORTER
Monday, Nov 02, 2009, Page 1

Democratic Progressive Party’s (DPP) Department of International Affairs Director Hsiao Bi-khim (蕭美琴) yesterday alleged that China was behind Cairo barring former vice president Annette Lu (呂秀蓮) from entering Egypt even though she had a visa.

Hsiao, vice president of Liberal International (LI) who just returned from an LI Congress in Cairo, said yesterday that the Egyptian organizer, the Democratic Front Party, asked the Egyptian foreign ministry to tell the DPP, an LI member, that Cairo would not let Lu enter the country.

Hsiao said Beijing threatened to cancel a planned visit by the Chinese foreign minister to Cairo if Egypt allowed Lu to attend the LI congress because China did not want the two to be in Cairo at the same time.

Hsiao said the DPP later found out that it was Chinese Premier Wen Jiabao (溫家寶) who visited Cairo.

Expecting Cairo to deny Lu’s entry should she make the trip, Hsiao said the party decided to cancel Lu’s visit. Hsiao and three others, however, managed to attend the event.

Lu had also planned to transit in Thailand, but her Thai visa application was denied, Hsiao said.

Lu had planned to give a speech at the Cairo event, whose theme this year was “Education for the 21st Century.” The event opened on Thursday and ended yesterday.

Hsiao criticized President Ma Ying-jeou’s (馬英九) “diplomatic truce” policy, saying a unilateral truce was meaningless because China’s suppression of Taiwan on the diplomatic front was on-going and would only get worse as Ma “surrenders all his weapons.”

Prosecutors question key pitcher
　

OH BROTHER: Banciao District prosecutors said that a previous search of Chuang Yu-lin's residence had turned up 20,000 'head-shaking pills' and NT$700,000 in cash
　

By Shelley Huang
STAFF REPORTER
Monday, Nov 02, 2009, Page 2
　

Banciao District prosecutors yesterday questioned former Brother Elephants pitcher Chuang Yu-lin (莊侑霖), saying that he plays a key role in the investigation into the professional baseball league game-fixing case.

Chuang allegedly bribed and threatened players to perform in such a way that their team would win or lose a game by a specific margin.


Aside from his alleged involvement in the game-fixing case, it has also been rumored that Chuang, under suspicion of being involved in gambling, drug dealing and other misdemeanors, may offer prosecutors evidence that would further incriminate the other players under investigation.


Banciao District prosecutors said a previous search of Chuang’s residence in Sanchong (三重) produced 20,000 MDMA pills (known as “head-shaking pills” in Chinese, “ecstasy” in English), NT$700,000 in cash and four mobile phones. Prosecutors suspect the cash was funds left over after buying the drugs.


Prosecutors said their questioning was mainly to clarify whether Chuang, using his connections in the country’s professional baseball league teams, acted as an agent for Tsai Cheng-yi (蔡政宜), the alleged head of the “Windshield Wipers” gang.


Prosecutors believe Tsai enticed players to throw games or manipulate the final score in ways to help a bookies syndicate cash in on illicit bets.


Evidence collected by the Taipei branch of the Ministry of Justice’s Investigation Bureau showed that the players rigged games in a number of ways, including throwing easy pitches for the batters to hit, walking batters, purposely committing errors or deliberately striking out. Once the gambling syndicate run by Tsai cashed in on its bets as a result of the players’ actions, it would then pay off the players through intermediaries, the Investigation Bureau believes.


Tsai and three of his associates were questioned and detained last Tuesday. Former professional baseball league players Chuang Yu-lin (莊侑霖) and Huang Chun-chung (黃俊中) were also questioned and detained on suspicion of acting as middlemen between the gambling ring and the players.


More baseball players and others who are suspected of being involved in the game-fixing ring may be brought in for questioning as prosecutors verify whether different statements corroborated each other, prosecutors said.


If any baseball players are suspected of taking prohibited drugs, prosecutors say they would take urine or hair samples to test for drugs. Prosecutors, however, say they have so far not found any physical evidence that baseball players have been taking prohibited drugs.


This is the fifth time in 20 years that professional baseball players from Taiwan have been investigated for throwing games.


Prosecutors launched their investigation a day after the Elephants lost 5-2 to the Uni-President Lions on Oct. 25 in the Chinese Professional Baseball League Taiwan Series championship decider.

No more trials by media

Monday, Nov 02, 2009, Page 8

Investigations by prosecutors in Taiwan are a bit like moving water in a bucket riddled with holes — you can count on leaks. Once a criminal investigation is under way, the details soon find their way into the papers and onto TV. Some media outlets and TV pundits then “improve” on the reports. Even if a suspect is later exonerated, it is hard to shake off the “sentence” passed in a trial by media. This essentially undermines the right to a fair trial and should be a concern regardless of whether the suspect is former president Chen Shui-bian (陳水扁) or a baseball player suspected of match-fixing.

The players investigated and interrogated in the latest baseball scandal have made headlines at every media outlet. Some of Taiwan’s best-known players have been investigated — most notably, former Los Angeles Dodgers pitcher Tsao Chin-hui (曹錦輝). Tsao admits to having dinner with a bookmaker on four occasions, but denies agreeing to do anything unlawful.

Baseball is Taiwan’s national sport, but following a series of match-fixing scandals, it is flagging. This scandal may be the straw that breaks the camel’s back.

Although the facts remain unclear, details of the investigation have already leaked and the media have reported that Tsao “didn’t tell prosecutors the truth,” leaving Brother Elephants general manager Hung Jui-ho (洪瑞河) no choice but to distance himself from Tsao and fire four players implicated in the scandal.

The players’ innocence or guilt should be determined based on evidence and in accordance with the law. Prosecutors have not even finalized the indictments, yet judging from the news, one would think Tsao has been convicted and the Elephants and the whole baseball league will go down with him.

The media are turning up the heat, and Tsao is getting sucked into a judicial maelstrom. The reality is that it will be very difficult for him ever to return to the baseball field.

If Tsao and other suspects are found guilty, they should of course suffer the consequences. But if they are innocent, they should not have to shoulder responsibility for mistakes committed by prosecutors during the investigation.

Prosecutors leaking confidential details of an investigation is nothing new. In some scandals, secrets are leaked to the media on a daily basis. But such leaks should not be ignored. They should be reported to the Control Yuan or to the Ministry of Justice. This is the only way to stem the flow of leaks to the media that can result in a guilty verdict from society before a case has even reached court.

Match-fixing has been investigated on several occasions in the past. Each time, a few hapless players are found guilty, while the criminal organizations behind the gambling on games go scot-free.

As a result, match-fixing soon reappears, leading teams to disband, players to retire and disappointed fans to lose interest. This is causing the popularity of domestic baseball to dwindle.

While it is praiseworthy that prosecutors take alleged match-fixing seriously, the judiciary must do a better job at assuring fair trials — not trials by media — and catching the masterminds behind the crimes.

Grand justices fail to take a stand
　

By Chang Wen-chen 張文貞
Monday, Nov 02, 2009, Page 8

Constitutional Interpretation No. 665 of the Council of Grand Justices deals with the decision to replace the judges handling the corruption cases against former president Chen Shui-bian (陳水扁) and some of his family members and associates when they were already underway. It also deals with the question of whether the Taipei District Court’s guidelines for assigning criminal cases, on which the decision was based, are in line with the Constitution.

Two of the grand justices found these to be unconstitutional, and one said that they should be reviewed, but the other grand justices found them to be constitutional. This is a most regrettable decision that obscures a number of ethical issues.

First of all, the decision to replace the judges handling the Chen case was made after the collegiate panel presided over by Judge Chou Chan-chun (周占春) had twice ruled that the defendants could be released from detention. It was not an ordinary and straightforward matter of related cases needing to be merged. The grand justices failed to address the issues concerning the timing of the switch and its infringement of the defendants’ right to a fair trial.

This failure may be partly because of their institutional constraints in having only abstract reviewing powers over laws and regulations, but not over individual cases and related facts. Such institutional constraints, however, should not be an excuse for their having completely ignored key facts, particularly regarding the timing of the substitution of the judge in Chen’s case.

The majority opinion among the grand justices was that switching judges in criminal cases is a straightforward matter of trial management and has no influence on the rights of the accused to a fair trial. That may be true, but does it mean that all connected cases, no matter how far the parties to the case have gone through the process of accusation and defense, can be abruptly reassigned according to the available judicial resources — for example, because a judge retires, resigns or falls ill?

Can the procedural guarantees that the accused is supposed to enjoy be ignored entirely? What about the accused’s confidence in the fairness of the process, and the time, effort and money they have spent on presenting their case?

Before 1966, the US Federal Rules of Criminal Procedure, to ensure the procedural rights of the accused, did not allow judges to be replaced at all during the course of criminal cases.

This rule originated from judgments made by several circuit appeals courts in the early 20th century. It was later realized, however, that if this ruling was strictly followed, even when judges fell ill or died, or in other circumstances where a judge really had to be replaced, it would hamper the conduct of the trial and violate the procedural rights of the accused.

Only in 1966 was the regulation revised to allow judges to be replaced in mid-trial under certain circumstances, but this is on condition that the procedural rights of the accused are protected.

The timing of the switch, the impartiality of the judges, their familiarity with the case and other factors must be taken into consideration. There have been plenty of cases at both federal and state levels of litigation in which the accused objected to judges being replaced during the course of a trial.

The majority opinion in Constitutional Interpretation No. 665 is that the Taipei District Court’s practices are not very different from the systems of other countries. It is hard to tell how much the grand justices really know about other legal systems.

What we do know, however, is that US academics of jurisprudence and political science have written several open letters regarding the Chen case, pointing out that substituting judges when a case is already underway infringes on the right of the accused to a fair trial and casts doubt on the impartiality of the judiciary. Their opinion is based on their own intimate understanding of constitutional government and human rights practices in the US.

So why did those grand justices who held the majority opinion not look into these criticisms?

The majority opinion expressed in the interpretation is also that it is not unconstitutional to authorize the leading judge of a divisional court or the presiding judge of a panel to form a team to investigate and decide the matter when judicial officials fail to agree through consultation on merging cases.

The grand justices were of the opinion that leading judges of divisional courts and presiding judges of panels are also judges, so there is no question of judicial administrative interference in the trial if they are authorized by the body of judges to handle the matter.

If that is the case, however, why has criticism been raised in the past about the many administrative powers held in practice by court presidents and presiding judges of panels in Taiwan? Why was it necessary for the grand justices to issue their Interpretation No. 539, which repeatedly states that leading judges of divisional courts and presiding judges of panels and those holding other administrative positions in the judiciary are different from judges?

It is indeed not necessary for regulations governing matters of judicial administration to be decided by all judges, but if such matters are put in the hands of leading judges of divisional courts and presiding judges of tribunals instead of entrusting them to teams in which different judges take part in turn, or conferences of judges, it is bound to be seen by some as violating the independence of the judiciary and equality among judges.

The grand justices’ own investigative panel is chaired in rotation by different grand justices who are on duty for a month at a time, not solely by the chief justice. Shouldn’t the same notion be extended to the lower courts?

Not long ago, in March this year, Taiwan ratified the International Covenant on Civil and Political Rights, Article 14 of which calls for protection of the right of the accused to a fair trial.

On Aug. 23, 2007, the UN Human Rights Committee issued its General Comment No. 32, an 18-page document regarding Article 14 of the convention. The comment states that where the accused is treated with clear animosity by the media or the public while a criminal process is underway, the procedure in the court cannot be impartial and this is a serious violation of the accused’s right to a fair trial.

The disputed facts of the Chen case should be decided by an impartial judiciary through a fair and unbiased legal process. The protection of the right of the accused to a fair trial is the cornerstone that ensures that all parties can have faith in courts’ judgments.

If the grand justices fail to defend the bottom line of our country’s judicial system and human rights, then one cannot but be anxious about the future of democracy, constitutional government and human rights in Taiwan.

Chang Wen-chen is an assistant professor of law at National Taiwan University’s College of Law.