20120909 Legal expert slams cross-strait jail deal

Legal expert slams cross-strait jail deal

READ THE SMALL PRINT: Taiwanese held in China are still at the mercy of authorities there and a recent agreement does little to protect them, a New York professor has said

By Shih Hsiu-chuan / Staff reporter

The latest cross-strait agreement on investment protection touted by President Ma Ying-jeou (馬英九) as a way for Taiwan and China to further open their economies to one another is not how the country should deal with problems in China’s criminal justice system, the legal academic Jerome Cohen has said.

In an opinion piece published in the South China Morning Post on Wednesday headlined: “For Taiwanese, the mainland remains a dangerous place,” Cohen, a professor of law at New York University’s School of Law, examined the Cross-Strait Bilateral Investment Protection and Promotion Agreement that was signed last month.

Taiwanese in China have enjoyed less security than foreign nationals who either rely on the Vienna Convention on Consular Relations or on bilateral consular agreements with China to tackle problems with China’s criminal justice systems, and these problems “remained unaffected” despite the signing of the cross-strait agreement, Cohen said.

Foreigners in China are detained by police for many reasons, Cohen said. “When commercial dealings turn sour, business people of Chinese descent, including those from Taiwan and Hong Kong, are especially at risk,” he wrote.

The newly revised Chinese criminal procedural law, scheduled to take effect on Jan. 1 next year, contains provisions aimed to remedy some of the chronic abues meted out by its police forces, but the system “provides no effective way to challenge such government lawlessness” because the law has many ambiguities and exceptions and because Chinese officials fail to enforce the rule of law, Cohen said.

Cohen said the latest cross-strait agreement gives Taiwanese detained in China “the appearance of increased security without the substance.”

In its dealings with Taiwan, China guaranteed that the families of detained people must be notified within 24 hours of detention in a separate “Statement of Common Understanding” rather than having the clause incorporated into the cross-strait agreement or its appendix.

“This unusual statement provides that, after taking criminal justice ‘compulsory measures’ against Taiwanese investors, their Taiwanese employees or accompanying family members, mainland public security authorities — mention of China’s notorious ‘national security’ agency is conspicuously absent — must inform a detained person’s family in the mainland within 24 hours,” he said.

“If the detainee’s family is not in the mainland, the statement merely indicates that the police ‘may’ inform the investor’s company,” he added.

Cohen said he agreed with critics that the statement “promises nothing more than what is already provided in China’s forthcoming criminal procedure law.”

“At best, the statement is a vaguely-worded reminder that China’s police should follow their laws when dealing with Taiwanese investors, giving notification of the detainee’s confinement, his location and the charges against him to the extent required,” he said.

Moreover, the statement does not make clear if the forthcoming criminal procedure law’s notification rule contains exceptions, Cohen said. “In cases of allegedly endangering national security or suspected terrorist activities, the rule frees police from the obligation to inform the family if, in their judgment, notification may hinder their investigation,” he said.

Cohen said that “direct family notification is not plausible” as China has said that because Taiwan is outside China’s control and under the 2009 Mutual Judicial Assistance Agreement, “notification must proceed from mainland authorities to Taiwan authorities to the Taiwan family.”

Unlike in Taiwan, family visits to detained suspects are not generally permitted in China. Detainees’ access to lawyers is also restricted in practice or prohibited in certain cases and Chinese lawyers, unlike their Taiwanese counterparts, do not have the right to be present during interrogations, Cohen said.

“These major differences remain unaffected by the statement,” he said, adding that it misleadingly notes that both sides have “offered convenience for family visits and lawyer’s meetings in accordance with their own rules.”

Yet, some still hope that the special position of Taiwanese in Beijing’s eyes might yield some groundbreaking improvements in China’s criminal justice system that might blaze a trail that could benefit others, he said.