20111201 ANALYSIS: Liu case highlights problems at national level

ANALYSIS: Liu case highlights problems at national level

By Shih Hsiu-chuan / Staff Reporter

The case of Jacqueline Liu (劉姍姍), a senior Taiwanese representative in the US who pleaded guilty to charges of violating a US federal labor law through maltreatment of her two Philippine housekeepers, has been held in abeyance pending a federal court ruling on a plea agreement she signed in her individual capacity.

Behind the strategy lies the belief that the diplomat may have deprived herself of her diplomatic status and sought a plea bargain to play down the controversy and avoid dragging the case in front of a grand jury and the public.

Although this could probably settle her case earlier, several problematic issues at the national level highlighted by the case remain unanswered, analysts are saying.

Liu, director-general of the Taipei Economic and Cultural Office (TECO) in Kansas City, Missouri, pleaded guilty to the felony on Nov. 18, agreeing to pay US$80,044 in restitution to two Philippine housekeepers for the hours they worked.

Under the deal, Liu would also be on probation and would be deported from the US.

Her arrest by the FBI on Nov. 10, soon followed by an FBI affidavit based on testimonies given by three TECO officials in support of the bureau’s criminal complaint against Liu, sent shockwaves through the government, which had been unaware of the problem until Liu’s arrest.

Liu has been kept in custody since then.

In the opening days of the controversy, the government lodged a stern protest against the US for what it called Washington’s failure to accord a Taiwanese diplomat due respect and to follow due process during its investigation into the case, demanding the “immediate and unconditional” release of Liu, whom it said enjoyed diplomatic immunity.

After Liu’s lawyer, James Wirken, weighed in on Nov. 16, the case was then characterized by the Ministry of Foreign Affairs (MOFA) as a personal incident, in a bid to secure Liu’s prompt release while compartmentalizing the immunity issue.

The shift in approach — which came after the government failed to bring the US around to its point of view that Liu was eligible for diplomatic immunity — won the approval of a former minister of foreign affairs, Chen Chien-jen (程建人).

Given that the disagreement between the US and Taiwan as to whether immunity should apply remains unresolved, the plea bargain was a solution that has taken into account concerns about human rights and the dignity of the nation, Chen said.

“It’s like walking and chewing gum at the same time,” he said.

“If accepted, the plea deal would be a solution that everyone can live with — Liu admitted her guilt in the US and will receive her punishment in Taiwan. The two sides are still at odds over immunity, but it’s better to just leave it at that. That way, it leaves room for each side to interpret the issue of immunity for Liu in its own way,” Chen added.

Before it shifted its approach, the government held the view that Liu was entitled to the same type of immunity the US grants to foreign diplomatic corps, despite the absence of official diplomatic relations with Taiwan since 1979.

The government based its stance partly on the US’ Taiwan Relations Act (TRA) of 1979, which provides for Taiwan to be treated under US law in the same way as foreign countries, nations, states, governments or similar entities, and partly on the US-Taiwan Agreement on Privileges, Exemptions and Immunities signed in 1980.

It also insisted that whether an act falls within the ambit of the 1980 agreement, which confines immunity to authorized functions, is up to the sending government to say; and in its eyes, hiring a housekeeper for an official residence satisfies the definition.

For its part, the US Department of State said that Liu enjoyed a status similar to that of consular officers and thus her immunity was restricted to actions performed in the execution of a diplomat’s public duties, which didn’t apply in this case.

Chen did not challenge the US’ view on the application of immunity in Liu’s case, despite him thinking the way the FBI handled the case was “way over the top” in terms of diplomatic protocol.

As times change, the recent trend in international law after World War II is that diplomatic immunity is “no longer sacrosanct as it was before,” Chen said.

“In the past, immunity was even extended to diplomats involved in schemes to overthrow governments in host countries. However, nowadays there is no such thing as diplomatic immunity even from paying a parking ticket in the US,” said Chen, who is a former Taiwanese representative to the US.

Taiwan and the US needed to discuss in detail the extent of immunity under the 1980 agreement to ensure that the rights of diplomats were protected, Chen said.

A professor of international law at the department of diplomacy at National Chengchi University, John Chao (趙國材), holds a different view — that “Liu’s case has been totally mishandled” by both the US government and Taipei.

The US Attorneys’ Office made a mistake “on purpose” when it handled the matter, which was supposed to be “a civil case involving foreign elements,” as a criminal one, he said.

When a legal contract is made between two countries, the legal regime of any single country becomes insufficient to deal with the situation, he said.

“In this case, Philippine law, not US law, was to be the law followed, because the contract was signed in Manila,” he added.

The way the US Attorneys’ Office handled the case also showed its “ignorance” of the TRA, which says the US does not recognize Taiwan as a sovereign state and that Liu was not a diplomat because she did not hold an A1 visa, Chao said.

Taiwanese diplomats and consular staff are entitled to privileges and immunities provided for in the Vienna Convention on Consular Relations and the Vienna Convention on Diplomatic Relations, because Taiwan maintains quasi-diplomatic relations with the US under the TRA, he said.

Chao also criticized the US Department of State for refusing Liu immunity.

“That Liu was treated in this way was because the US has been high-handed with Taiwan. Had she been a Chinese diplomat, things would have been different,” he said.

Chao said he failed to see why the government lived with the situation in which Liu, a 30-year diplomat, was treated like an ordinary individual in a US court.

“International laws of diplomatic immunity are procedural in nature. Taiwan retains jurisdiction over Liu’s wrongdoings because Liu is a diplomat of the country. She is not subject to substantive hearings within the US jurisdiction,” he said.

The US’ handling of the case has made the 1980 agreement “an unequal accord” against the reciprocal nature of diplomatic immunity among nations, Chan said.

In recent years, there were many cases involving US diplomats posted in Taiwan that were dismissed, with immunity even extending to members of their families which were not covered by the 1980 agreement, he said.

“For example, an American Institute in Taiwan [AIT] official’s wife who caused a death in a traffic incident was released before going to court. An FBI official who lectured in Taiwan secured immunity for his son who was arrested for stealing a car and street racing. A student at Taipei American School was immune from lawsuits for spraying paint on vehicles because his father was a US official in Taiwan,” Chao said.

Chao said the government should remove police protection at the AIT compounds in Taipei and Greater Kaohsiung.

“There is no point in protecting US diplomats in Taiwan when our diplomats in the US are not protected,” he said.

A researcher at the Taiwan International Workers Association, Wuo Young-ie (吳永毅), criticized the ministry for “falling far short of human rights standards” set forth by the international community for the protection of migrant workers.

“As a government which enjoys bragging about its anti-human trafficking efforts, it’s beyond belief that the ministry seemed to have no idea that what it had done was wrong in terms of its recruitment of migrant workers,” Wuo said.

Before Liu pleaded guilty, the ministry issued a statement in her defense on Nov. 14.

Opposing the allegation that Liu underpaid her second housekeeper, the ministry said in the statement that the Philippine worker voluntarily agreed in a letter to have US$790 deducted from a monthly salary of US$1,240, as stipulated in her contract to cover board and lodging and a medical insurance premium, which left her with US$450 per month, on top of US$140 for groceries.

“The letter was invalid because of a violation of the contractual terms. In legal theory, it’s a matter of common sense that any private agreement cannot override statutory legal provisions. How could the ministry not know that?” Wuo said.

In practice, the letter was an illustration of exactly how vulnerable migrant workers are at the hands of an exploitative brokerage system, in which workers are often forced to sign many documents under duress of some kind, which are imposed upon them by brokers in collaboration with employers, rather than signing voluntarily, he said.

To protect migrant workers, it’s a practice widely adopted by most countries that no deductions of any nature shall be allowed from contractual pay except for charges listed in an affidavit endorsed by both home and host governments, Wuo said.

“For example, in the case of Taiwan, any deduction from monthly pay is illegal if not included in the Foreign Workers’ Affidavit Regarding Expenses Incurred for Entry into the Republic of China and the Wage/Salary legal documents,” he said.

Despite this, Wuo said there were in reality numerous cases of migrant workers being given piles of documents to sign just before their planes were about to take off from their home countries.

“When you have already paid brokerage fees and your broker withholds your passports and flight tickets unless you sign the documents, wouldn’t you sign? You would, but not voluntarily. Some people didn’t even have time to read the documents before they signed,” Wuo said.

Similar situations occurred when migrant workers arrived in host countries, Wuo said.

“They could be asked to either face deportation or to sign a stack of documents, for example, turning over passports voluntarily,” he said.

At the very least, the ministry should have known that it had been paying Liu’s housekeepers well below the US minimum wage, Wuo said.

The ministry also failed to explain whether the deduction of US$790, which was far more than 60 percent of the housekeeper’s monthly wage, was within the legal limitations on deductions that could be made for room and board for live-in domestic helpers, he said.