Scholars Find Taiwan's Minster of Justice's Response Inadequate

Saturday November 29, by Jerome F. Keating Ph.D.

The previous posting of Taiwan's Minister of Justice's response to the JOINT STATEMENT of the scholars and writers (posted November 15) did not address the real issues of the erosion of justice in Taiwan. Ignoring numerous other protests also listed below, the Minister's response appears to hide behind the technicalities of the Constitution. Taiwan's current Constitution has many inadequacies; among them is that it was created for continental China but ill fits the island nation of Taiwan. By the Minister's implication it is so broad that it allows numerous abuses that may be technically within the letter of the law but far from the spirit and purpose of the law. For this reason it can allow the selective application to one's political opposition and still fall under the umbrella of the Constitution. For that reason, the scholars/writers of the first statement on the erosion of justice in Taiwan felt obligated to respond in specifics to the Minister's letter. That response can be found below.

November 28th 2008

The Honorable Wang Ching-feng

Minister of Justice

Taipei, Taiwan

Dear Minister Wang,

In an open letter to the Taipei Times, published on November 25th 2008, you responded to our joint statement regarding the erosion of justice in Taiwan. We appreciate your acknowledgement of the sincerity of our concerns, and are grateful to receive a prompt and serious reply. Based on the information available to us, however, we remain concerned about choices made by prosecutors in applying existing legal authority and strongly believe in the need for reform. Please allow us to highlight a number of specific points:

The procedure of "preventive detention." This procedure is obviously intended for serious criminal cases in which the suspect is likely to flee the country. In his November 13th article in the South China Morning Post, Professor Jerome Cohen states that "it ought to be invoked rarely."

Yet, during the past weeks, it has been used across the board, and it has been used only against present and former members of the DPP government. This casts severe doubts on the impartiality of the judicial system. We also wish to point out that the people involved were detained under deplorable circumstances, and that they were not even allowed to see relatives.
The open letter contains the argument that when they were detained, the present and former DPP government officials "were all informed of the charges that had been brought against them." This is simply not correct: when they were detained, they were subject to lengthy interrogations in some cases for up to 20 hours which bore the character of a "fishing expedition," and is not a formal indictment in any legal sense. In most cases the prosecutors had had months of time to collect information: if they did have sufficient evidence of wrong-doing, they should formally have charged the persons and let them have their day in a scrupulously impartial court of law. That would be the desirable procedure under the rule of law in a democratic society.
The open letter also states that the persons involved had "the right and ability to communicate with their attorneys to seek legal assistance." It neglects to mention that in all cases where people were detained, the discussions with the lawyers were recorded and videotaped, while a guard took notes. This information was then immediately transmitted to the respective prosecutors. We don't need to point out that this is a grave infringement on international norms regarding the lawyer-client privilege, and makes mounting an adequate defense problematic at best.
On the issue of leaks to the press, the letter states that under the Code of Criminal Procedure information on ongoing investigations can only be disclosed by spokespersons of the prosecutor's offices and that unauthorized disclosure is subject to criminal prosecution. The fact of the matter is that during the past weeks, the media has been filled with information on the ongoing investigations which could only have come from the prosecutors. We may point out one example, but there are ample others:

Only a few hours after former Foreign Minister Mark Chen was questioned on November 3rd, the Apple Daily (a local tabloid) ran an article that "the prosecutors are thinking of charging Dr. Chen in relation to the case."

The issue of violation of the principle of secret investigation was also raised by Shih Lin District Court Judge Hung Ing-hua, who strongly criticized the present situation and procedures followed by your Ministry in an article in the "Liberty Times" on November 17th 2008.

We may also mention that we find it highly peculiar that no steps whatsoever have been taken against the various prosecutors who leaked information, while we just learned that your ministry is now taking steps against Mr. Cheng Wen-long, the lawyer for former President Chen Shui-bian, who presumably "leaked" information to the press. Your Ministry sent a formal request to the Taipei District Prosecutor's Office asking the office to investigate and prosecute, and also sent a formal request to Taiwan Lawyer's Association and asked the association to review the case and see whether Cheng should have his license revoked.

It is our understanding that the statements Mr. Cheng made were in relation to former President Chen's views on Taiwan's situation and its future, and an expression of love for his wife, but did not have any bearing on the case against him. We hope your Excellency realizes that if you proceed along these lines, this will be perceived as a direct confirmation of the strong political bias of the judicial system.
The letter states that it is untrue that Taiwan's judicial system is susceptible to political manipulation. If this is the case, how can it be explained that in the past weeks, only DPP officials have been detained and given inhumane treatment such as handcuffing and lengthy questioning, while obvious cases of corruption by members of the KMT - including in the Legislative Yuan - are left untouched by the prosecutors or at best stalled in the judicial process?

We may also refer to expressions of concern by Prof. Jerome Cohen and by lawyer Nigel Li, who expressed his deep concerns about the preventive detentions in an editorial in the "China Times" on November 9, 2008. In his editorial, Mr. Li praised the remarks made by prosecutor Chen Rui-ren, who was part of the legal team prosecuting the special fund cases, that the prosecutors' offices should "avoid the appearance of targeting only one particular political group."

The fact that the Special Investigation Task Force was set up under the DPP Administration or that the prosecutor general was nominated by President Chen is not at issue here. The problem is that the present system is being used in a very partial fashion.

We may add that the fact that you yourself have publicly discussed the content of the cases does create a serious imbalance in the playing field, and undermines the basic dictum that a person should be considered innocent until proven guilty in a court of law. Under the present circumstances it is hard to see how the persons involved including former President Chen Shui-bian can have a fair trial in Taiwan.
Lastly, you take the statement by the US State Department as an "endorsement" of Taiwan's legal system and the procedures followed. You might want to note that in international diplomatic language, the term we have every expectation means we are concerned and we will watch the situation closely.

For the past two decades, Taiwan has faced a difficult situation internationally. What has given Taiwan important credibility in Western democratic countries around the world has been its democratization. We fear that the current judicial procedures being used in Taiwan endanger this democratization, and endanger the goodwill that Taiwan has developed internationally.

In conclusion: we do remain deeply disturbed by the erosion of justice in Taiwan, and express the sincere hope and expectation that your government will maintain fair and impartial judicial practices and quickly correct the present injustices. As an editorial in the November 20th issue of the London-based Economist indicated, Taiwan is hungry for justice, and we also hope that your government will be willing to initiate judicial reform which would move Taiwan towards a fully fair and impartial judicial system which earns the respect and admiration from other democratic countries around the world.

Respectfully yours,

Signatories of the November 4th Joint Statement

Nat Bellocchi, former Chairman of the American Institute in Taiwan
Julian Baum, former Taiwan Bureau Chief, Far Eastern Economic Review
Coen Blaauw, Formosan Association for Public Affairs, Washington DC
Stéhane Corcuff, Associate Professor of Political Science, China and Taiwan Studies, University of Lyon, France *
Gordon G. Chang, author, "The Coming Collapse of China."
David Curtis Wright, Associate Professor of History, University of Calgary
June Teufel Dreyer, Professor of Political Science, University of Miami, Florida
Edward Friedman, Professor of Political Science and East Asian Studies, University of Wisconsin, Madison
Mark Harrison, Senior Lecturer, Head of Chinese School of Asian Languages and Studies, University of Tasmania, Australia*
Bruce Jacobs, Professor of Asian Languages and Studies, Monash University, Melbourne, Australia
Richard C. Kagan, Professor Emeritus of History, Hamline University, St. Paul Minnesota
Jerome F. Keating, Associate Professor, National Taipei University (Ret.). Author, "Island in the Stream, a Quick Case Study of Taiwan's Complex History" and other works on Taiwan
Daniel Lynch, Associate Professor, School of International Relations, University of Southern California
Victor H. Mair, Professor of Chinese Language and Literature, University of Pennsylvania
Donald Rodgers, Associate Professor of Political Science, Austin College, Texas
Terence Russell, Professor of Chinese Language and Literature, University of Manitoba
Scott Simon, Professor of Sociology and Anthropology, University of Ottawa
Peter Tague, Professor of Law, Georgetown University
John J. Tkacik Jr., Senior Research Fellow, The Heritage Foundation, Washington DC
Vincent Wei-cheng Wang, Professor of Political Science, University of Richmond, Virginia
Arthur Waldron, Lauder Professor of International Relations, University of Pennsylvania
Gerrit van der Wees, Editor Taiwan Communiqu? Washington DC
Stephen Yates, President of DC Asia Advisory and former Deputy Assistant to the Vice President for National Security Affairs