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Row with Philippines overblown
By Wu Ching-chin 吳景欽
The extradition by the Philippines of 14 Taiwanese criminal suspects to China
has been much criticized. The government has also responded with a variety of
punitive measures. I wonder, though, whether it’s really the Philippines that
should be blamed for this fiasco.
The case involved fraud on an international scale, but since the criminal ring
was operating out of the Philippines, the Philippine courts had jurisdiction
according to the principle of territorial grounds. When the Philippine courts
decided not to exercise this privilege, they were able to pass jurisdiction to
any other country that has a claim.
Now, regardless of the fact that the group included a number of Taiwanese, the
criminal activity occurred on Philippine soil. Unless Taipei can show that
people within Taiwan were victims of the fraud or that the government regards
China as part of its territory, it cannot claim that the crime occurred within
its borders and therefore it has no jurisdiction on the basis of territory.
Furthermore, according to Article 7 of the Republic of China Criminal Code (刑法),
if Taiwanese commit a crime on foreign soil, they are only liable to be
prosecuted in Taiwan if the crime warrants a custodial sentence of three or more
years. Fraudulent activity, as was committed in the case in question, carries a
sentence of less than five years.
Therefore, if the Philippines had extradited the Taiwanese to Taiwan and an
attempt had been made to prosecute them, the courts may have returned a
non-guilty verdict. This would have risked the creation of a legal loophole.
The only way this loophole could have been avoided was if the Philippines, when
extraditing the suspects to Taiwan, had attached certain conditions and this
would have had to have been contingent on signing a mutual agreement on legal
assistance. Given that Taiwan and the Philippines do not have diplomatic
relations, the possibility of signing such an agreement is next to zero. Cases
such as this, then, would have to be negotiated on an individual basis and the
decision would ultimately have been Manila’s to make, not Taipei’s.
However, Article 6 of the People’s Republic of China’s Criminal Law is
applicable to any crime that is either committed or has consequences in China.
Since the victims of the fraud were living in China, Beijing could claim
jurisdiction on the basis of territory and ask Manila to extradite all the
suspects.
The Philippine authorities would of course not extradite someone just because
the another country has jurisdiction in a case. They would also have to consider
whether the suspect would receive the protection of due process, the ability to
question evidence and so on.
The premise for such concern is the existence of an extradition treaty,
specifically the treaty signed between China and the Philippines that took
effect on Aug. 1, 2005. The extradition was based on this treaty, so although it
did not follow past praxis, it was based on legal foundations.
These legal reasons are, of course, secondary, as Manila’s primary concern was a
gesture of good will toward Beijing. These days, very few countries would
refrain from making a gesture of good will to Beijing, so blaming Manila for
doing so is pushing the envelope a bit too far.
Since relations between Taipei and Manila have been good in the past, the
deciding factor that forced the Philippines to go against precedent was probably
the signing of the Agreement on Joint Crime--Fighting and Mutual Legal
Assistance Across the Taiwan Strait (海峽兩岸共同打擊犯罪及司法互助協議).
Although mutual legal assistance involves the highly controversial issue of
sovereignty, the agreement was signed by the Straits Exchange Foundation and the
Association for Relations Across the Taiwan Strait, two private organizations.
It was approved by the Cabinet and only submitted to the legislature for
reference purposes, making it clear that the government is treating the
sovereignty issue as some kind of game.
Even worse, since the government continues to stress the view that there is “one
China, with each side having its own interpretation,” the agreement on mutual
legal assistance is merely a statement surrendering Taiwan’s sovereignty. In
making its decision, the Philippines only went with the flow.
The question is whether the government’s sanctions against the Philippines and
the preparations to ask China to return the suspects to Taiwan could save the
situation?
Since the Taiwanese already are in China, Taipei will have to ask for their
return based on Item 6 of the agreement on mutual legal assistance. However, it
is very unlikely that Beijing would accept the possibility of a potential
not-guilty verdict that could result from a trial in Taiwan and it is therefore
almost certain that it would demand that Taiwan includes China in its territory
as a condition for returning the suspects.
If that happens, Taiwan would have to relinquish its sovereignty and put its own
existence at risk.
Wu Ching-chin is an assistant professor in Alethia University’s Department of
Financial and Economic Law.
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