Taiwan's Minister of Justice is a liarScholars say nicely

Scholars Find Taiwan's Minster of Justice's Response Inadequate
Saturday November 29, by Jerome F. Keating Ph.D.
...

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:

1. 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.

2. 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.
3. 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.
4. 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.

5. 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.

6. 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

1. Nat Bellocchi, former Chairman of the American Institute in Taiwan
2. Julian Baum, former Taiwan Bureau Chief, Far Eastern Economic Review
3. Coen Blaauw, Formosan Association for Public Affairs, Washington DC
4. Stéphane Corcuff, Associate Professor of Political Science, China and Taiwan Studies, University of Lyon, France *
5. Gordon G. Chang, author, "The Coming Collapse of China."
6. David Curtis Wright, Associate Professor of History, University of Calgary
7. June Teufel Dreyer, Professor of Political Science, University of Miami, Florida
8. Edward Friedman, Professor of Political Science and East Asian Studies, University of Wisconsin, Madison
9. Mark Harrison, Senior Lecturer, Head of Chinese School of Asian Languages and Studies, University of Tasmania, Australia*
10. Bruce Jacobs, Professor of Asian Languages and Studies, Monash University, Melbourne, Australia
11. Richard C. Kagan, Professor Emeritus of History, Hamline University, St. Paul Minnesota
12. 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
13. Daniel Lynch, Associate Professor, School of International Relations, University of Southern California
14. Victor H. Mair, Professor of Chinese Language and Literature, University of Pennsylvania
15. Donald Rodgers, Associate Professor of Political Science, Austin College, Texas
16. Terence Russell, Professor of Chinese Language and Literature, University of Manitoba
17. Scott Simon, Professor of Sociology and Anthropology, University of Ottawa
18. Peter Tague, Professor of Law, Georgetown University
19. John J. Tkacik Jr., Senior Research Fellow, The Heritage Foundation, Washington DC
20. Vincent Wei-cheng Wang, Professor of Political Science, University of Richmond, Virginia
21. Arthur Waldron, Lauder Professor of International Relations, University of Pennsylvania
22. Gerrit van der Wees, Editor Taiwan Communiqué, Washington DC
23. Stephen Yates, President of DC Asia Advisory and former Deputy Assistant to the Vice President for National Security Affairs

JFK: Taiwan's Minister of Justicelacks a basic grasp of the legal system

In Jerome F Keating's recent posting Taiwan's Minister of Justice Responds to the Scholars' Joint Statement, he wrote: Wang Ching-Feng did not mean what she wrote or lacks a basic grasp of the legal system. In the first case, she openly says: even though you all see this as a deer, it actually is a horse. In the second case, we have someone who does not know physics, but is now teaching quatum physics. Some thoughts:

• She is actually both inept and always ready to lie and distort facts shamelessly.
• The irony is that as Minister of Justice, she is responsible to make our society JUST. Here again, we have a hyaena guarding chicken coop.
• I suggest that 新台灣論壇, 大話新聞 or 頭家來開講 invites Wang Ching-Feng to their programs to answer real questions.
• I look forward to scholars' response and I hope the whole world will speak up and say: Enough is enough, Taiwanese must not continue to tolerate such flagrance at the highest levels of government.
  

I attach JFK's article here.

Taiwan's Minister of Justice Responds to the Scholars' Joint Statement
Thursday November 27, by Jerome F. Keating Ph.D.

On November 6th some twenty US, Canadian, European, and Australian scholars wrote a Joint Statement to Taiwan's Ministry of Justice and other government agencies expressing deep concern over the recent series of detentions in Taiwan (that statement can be seen below on November 15). The statement was also published in the "Taipei Times" on November 6. The Honorable Wang Ching-feng, Taiwan's Minister of Justice recently responded to that statement stating that it was inaccurate on several points. Minister Wang's letter was printed in the "Taipei Times" on November 25. On November 26 the Taipei Times editorial addressed the Minister's letter and in particular where it claimed that all Democratic Progressive Party (DPP) figures arrested were charged according to law within 24 hours. The editorial stated "This unfortunately, is also simply untrue raising concerns that Wang did not mean what she wrote or lacks a basic grasp of the legal system." The full editorial can be found in the Taipei Times for November 26.

This writer, as one who signed the original Joint Statement, was quite surprised to see the Minister make the following claim. "This (the accusations) creates the misimpression that Taiwan's judicial system is susceptible to political manipulation which quite simply is untrue." This may have been an error in translation, but while one hopes that Taiwan's judiciary is fair and impartial, such a statement suggests that Taiwan is already a perfect world. To judge for themselves, readers can go through the Minister's letter printed below. In the meantime, the original twenty scholars will be providing their joint response in the coming days. Minister Wang's letter is as follows.

Tuesday, Nov 25, 2008, Page 8 --Open letter is inaccurate

The signatories who wrote the open letter that appeared in the Taipei Times leveled several criticisms against Taiwan's prosecutorial and judicial procedures ("Open letter on erosion of justice in Taiwan," Nov. 6, page 8). Regrettably, various statements in the letter appear to be indicative of a lack of understanding or perhaps a misunderstanding of due process of law in Taiwan. The Ministry of Justice would like to clarify the relevant facts.

The open letter alleges that "the procedures followed by the prosecutors' offices are severely flawed." The majority of the detained present and former Democratic Progressive Party (DPP) government officials, the letter read, were "being held incommunicado without being charged," which "is a severe contravention of the writ of habeas corpus and a basic violation of due process, justice and the rule of law." We believe the facts clearly show that this allegation is groundless.

As required by law, when the present and former DPP government officials were interrogated by the prosecutors, they were all informed of the charges that had been brought against them. They were also informed of their rights to retain counsel and to remain silent. After they were detained, they had the right and ability to communicate with their attorneys to seek legal assistance. None of them was held incommunicado without charges.

After they were arrested, they were immediately, within 24 hours at most; brought before judge(s) to determine whether they should be detained before trial for the crimes they were charged with. This is a standard procedure that was strictly followed by all of the prosecutors involved.

Therefore, in the cases in question, the prosecutors did not contravene the writ of habeas corpus or violate due process, justice, or the rule of law. Even the defense attorneys of the DPP officials did not accuse the prosecutors of doing what the open letter claims they did. These facts are indisputable and serve as proof of the prosecutors' compliance with due process and the law as well as respect for the writ of habeas corpus.

The open letter further states that "the prosecutors" offices apparently leak detrimental information to the press with the intention of conducting a "trial by press." The confidentiality of investigations, however, is explicitly required by our Code of Criminal Procedure. Information relating to ongoing investigations can be disclosed only by the spokespersons of prosecutor's offices. Any prosecutor who discloses information without authorization will be internally disciplined as well as be subject to criminal prosecution.

The media may receive information from a number of different sources, such as the defense counsels, defendants and witnesses. With respect to the criticism of the Special Task Force attached to the Supreme Prosecutor Office, we have asked the Supreme Prosecutor Office and the Ethics Office of this Ministry to investigate. So far, however, there is no evidence that any prosecutors or other law enforcement officials leaked information to the media.

The most serious allegation made in the open letter was that alleged leaks to the press give "the distinct impression that the Kuomintang [KMT] authorities are using the judicial system to get even with members of the former DPP government. This creates the misimpression that Taiwan's judicial system is susceptible to political manipulation, which quite simply is untrue.

The investigations into the cases referred to in the open letter began when the DPP was the ruling party. In addition, the Special Investigation Task Force was created under former president Chen Shui-bian's administration, and the prosecutor-general of the Supreme Prosecutor Office was nominated by Chen himself.

These facts are testament to the impartiality of Taiwan's prosecutorial and judicial system, and should lay to rest any claim of partisanship on the part of the Special Investigation Task Force.

During a press conference last Tuesday, in answer to questions about recent developments in Taiwan, US Department of State Spokesman Sean McCormack said: "This is a matter for Taiwan's legal system to resolve. We are confident in Taiwan's democracy and its legal system, and we have every expectation that the process will be "transparent, fair and impartial."

We in the Ministry of Justice surely share this view and want to reassure those who are concerned about Taiwan, including those who wrote and signed the open letter, that there will be absolutely no erosion of justice in Taiwan, no matter who the accused is.

WANG CHING-FENG

Minister of Justice

Republic of China

黃榮堅（德國波昂大學法學博士）:檢察系統 看不到

The following article by 黃榮堅（德國波昂大學法學博士、台大法學院教授）is part of the 檢舉書狀 from 學者教授團體 to 監察院 on 2008-11-24 re 警政及國安單位於陳雲林來台期間之違法濫權行為.

Read the 檢舉書狀 from Bunhu's web site at http://blog.yam.com/bunhu/article/18436216

An excerpt:

我們固然看到政府機關積極對於參與集會遊行者的撻伐與刑事追訴，但是對於最應該負責任，也最可能構成犯罪的各層級執政者，卻沒有任何甚至只是偵查事實的動靜。 當然我們也知道，違法的內政部長，違法的警政署長，違法的國安局長與違法的分局長不可能追究自己的責任，因為這就是人類歷史上國家非法暴力的事實特徵。問 題是，整個國家的檢察系統應該是受過法學教育的一群人所組織起來的，那麼果真他們也看不到這一些事情，聽不到這一些事情，或者所接受過的教育不足以使心中 產生一些疑惑？是自我規訓嗎？或者檢察官們也想引用所學的「欠缺期待可能性」概念來為自己做辯解？就讓我們檢驗一下：我們這一個國家的國家非法暴力可以貫 徹到什麼程度？

Full text follows:

問題不在暴力，問題在正當性

黃榮堅（德國波昂大學法學博士、台大法學院教授）

一、執政者的居心是什麼？

對於圓山事件引起人民的抗議，執政者的回應集中在集會遊行法的修訂，並且一再表明，集會遊行法的修訂本來就是執政黨的政策之一。對於圓山事件，執政者之所以把焦點限縮在集會遊行法的修訂，其用意是表明執政者對於圓山事件的處理並無錯誤，如果有問題，是集會遊行法的問題。而且，既然集會遊行法的修訂本來就是執政黨既有的政見與政策，那麼表示到最後，執政者不管對於圓山事件，或是對於修法問題，並沒有錯誤。

集 會遊行法的修訂是極為困難的事情，原因在於集會遊行的原因、背景以及所涉影響不一而足，因此尺度的拿捏不易一致。如果對於集會遊行法能夠有什麼不變的原 則，可以說只有比例原則。除此而外，任何過於細緻的規範都很難有普遍的有效性。我也支持集會遊行法的討論與可能的修訂，不過除此之外，我的觀念重點在於，民主精神的落實，最後所依賴的並不是法律文字，而是實踐的素養與態度。執政者在此次圓山事件明顯暴露出來，所欠缺的就是民主的素養與態度， 而不是其他，因此我們對於執政者要求的是身體實踐民主！雖然法律文字可以有「比例原則」的用語，可以有「言論自由」的用語，甚至也可以有「人權」的用語， 但是現實問題是，我們所理解的比例原則不是執政者心中的比例原則，我們所理解的言論自由不是執政者心中的言論自由，我們所說的人權也不是執政者心中的人 權。否則，為什麼在圓山事件中主其事者可以肆無忌憚的施暴於人民？如果對於此次圓山事件的檢討，問題限縮在集會遊行法的修訂，那麼不管集會遊行法如 何修訂，不管是不是採取報備制或其他什麼制，我們可以預測其後果是，下一次中華人民共和國代表再到台灣時，國安局長或警政署長所指揮的警察照樣對人民施 暴，因為那就是他們心中的比例原則、言論自由與人權標準。我白話的講，執政者不懂比例原則，不懂言論自由，不懂人權，並不是看不懂這一些文字，而是心中沒有這些東西。 我必須明白的說，執政者對於此次圓山事件的回應，把問題限縮在集會遊行法的修訂，而不談主其事者對於圓山事件的責任問題，其用意在準備，當下一次中華人民 共和國代表再到台灣時，他們可以照樣再一次指揮警察對人民施暴。因為，如果圓山事件當中，主其事者是不需要道歉或下台的，表示他們的作法是沒有錯的，那 麼，為什麼不能再來一次呢？甚至如果下次中華人民共和國派到台灣的代表是層級更高的人，那麼何嘗不能光明正大的使用更殘酷的手段來對付人民？

二、問題在哪裡？

執政者與人民對嗆，說問題是出在暴力，但是，問題果真出在暴力上嗎？如果說暴力的定義是對於人或對於物的破壞，那麼就事實層面而言，圓山事件當中使用絕大多數暴力的是警察所代表的國家，而不是到現場抗議的人民。從此可以得到的第一個論點是，暴力本身原本是中性的， 否則一個國家法律體制內怎麼可能容許國家暴力的存在？既然如此，邏輯上也沒有辦法說暴力形式就不能見容於人民身上。甚至法律上也很清楚的，至少正當防衛、 緊急避難或容許風險等等的情況下是可以使用暴力的，甚至可以包括殺人，而且一如我個人在犯罪結構概念上一貫主張二階層理論的核心精神所顯示的，這一些暴力 行為，其正當性並沒有一絲一毫的打折。因此第二個論點是，問題不在暴力，問題在正當性。對於此，既然執政者說是「問題出在暴力」，其所說的暴力不會是說國家的暴力，而是專指人民的暴力。顯然他們急於指責人民的同時，心中忘掉國家本身在使用暴力，更不知道國家暴力也有對錯的問題。

暴力本身是中性的，是沒有對錯的。暴力可不可以被容許，要看背景情況。簡單講，有正當性的暴力是被容許的，沒有正當性的暴力是不被容許的。從基本背景來觀察，對於台灣與中華人民共和國的地位關係，對於青天白日滿地紅旗幟所代表的意義，執政者與反對者有不同的界定，到頭來也代表者不同的情緒立場。反對人士過去反對青天白日滿地紅的旗幟，反對的是其代表國民黨政權對台灣統治權的內向意義，但是卻不在反對此一旗幟現實上代表台灣作為主權獨立國家的外向意義。反之，國民黨對於此一旗幟必然堅持的是其代表對台灣統治權的內向意義，但是不堅持的是（面對中華人民共和國時）代表台灣作為主權獨立國家的外向意義。儘管如此，就一個民主國家而言，不同的立場與言論是可以並存的。因此執政黨儘管有其立場，卻無權在陳雲林來台時禁止人民表達不同言論，更無權處心積慮防止青天白日滿地紅的影子進入陳雲林的眼睛裡，防止人民抗議聲音進入陳雲林的耳朵裡。所以，在整個陳雲林來台時，主其事者對於臺灣人民言論自由的嚴厲管制政策，基本上是完全沒有正當性的。如果延長到事後的情勢發展，則特別是在執政者許可反對人士針對馬陳會時間點申請集會遊行後，突襲性的把馬陳會的時間提早到當日上午十一點，透過表面上的技術運作，實質上達到蒸發人民反對聲音的效果，也道道地地的否定人民對於國家基本政策的主權地位。從民主國家的標準來看，這是國家透過對於人民的愚弄來挑釁人民！挑釁人民然後鎮壓人民，無意重複執政者將近三十年前美麗島事件所使用的手法。

面 對國家對言論的不法管制與強制，人民能怎麼辦？人民因此喪失了言論自由的權利了嗎？如果是這樣，言論自由就不叫做言論自由。既然憲法賦予人民言論自由的權 利，人民當然有權繼續為言論的表達。對於事件中所出現個人激烈的攻擊員警的動作，當然也是違法的，因為在這一件事情的意見表達技術上，沒有如此的必要性。 所以，檢警單位必須追究其傷害罪責任，也必須釐清真假暴民的問題。至於主持集會遊行者，有控制基本遊行秩序的作為義務，不過對於個別的失序行為，依然有其 容許的風險，否則無異根本禁止集會遊行。從期待可能性做為保證人地位的上位概念來看也是一樣：對於遊行當中的任何失序，或是宣佈解散後的殘餘遊行與動作， 如果當然歸責於遊行主持人，與無異根本禁止集會遊行。相對的，對於執法的警察，所可能存在的罪名主要有強制罪、傷害罪、毀損罪以及強盜罪等。當然，奉命執 行勤務的警察最可能引用的排除不法事由是依所屬上級公務員命令之行為，然而此一排除不法事由有但書規定，亦即明知命令違法不在此限。因此問題在於，執法警 察是否明知命令違法？以機車插國旗、持國旗傘或戴國旗帽而被強制攔截，甚至被折斷旗桿，或者店家播放台灣歌曲而被強制搜索與關門的情況來看，要說是警察不 知道上級命令違法，只有一種解釋，就是中華民國的警察果真普遍沒有基本人權的概念。其實這種說法也很難說得通，因為我們不知道，三十年來，中華民國的警察 什麼時候是會用大批武裝警力來取締噪音的？更不知道，是什麼時候開始，中華民國的國旗是只被國家允許放在家裡，而不被國家允許在公共場所出現的？如此，要 說是執行勤務的警察欠缺不法意識，可能也要費功夫。剩下來最容易為執行勤務的警察解套的途徑就是責任概念上的期待可能性問題，換句話說，在現實環境下沒有 辦法期待警察可能抗拒上級違法的命令，所以基本上行為不罰。最後真正難以脫罪的應該是國安局長、內政部長或警政署長等指揮勤務者，因為這一些人位居 高階，已經沒有辦法用依上級命令來排除不法，也沒有辦法用欠缺期待可能性做為阻卻罪責事由，應該依個別情形負強制罪、傷害罪、毀損罪以及強盜罪等間接正犯 的責任。特別是，警察單位是動用國家資源特別訓練出來的國家工具，所以對於可預見警察施加於人民的不法暴力，上級者沒有容許風險的空間。

三、國家不敢面對的正義？

國家暴力相對於個人暴力的可怕，一在被害者求救無門，因為典型的國家暴力，高層執政者本身就是加害人，所以事實上不可能追究自己的責任。二在扭曲價值論述，斷絕爾後一切轉型正義的契機，因為執政者掌握一切國家資源，足以抹黑異議人士，或者至少麻痺人民的正義概念。我們看到執政者譴責反對人士背棄和平的承諾，問題是，除非執政者心中果真毫無民主概念，否則既然國家本身已經背棄對於人民的民主承諾時，還有什麼資格要求人民必須信守和平的承諾？就事後的責任追究而言，理論上，不管是來自哪一方面的人士，對於事發當天個人直接或間接使用暴力的情形必須逐一清查，必須逐一確定其責任。於此，我們固然看到政府機關積極對於參與集會遊行者的撻伐與刑事追訴，但是對於最應該負責任，也最可能構成犯罪的各層級執政者，卻沒有任何甚至只是偵查事實的動靜。 當然我們也知道，違法的內政部長，違法的警政署長，違法的國安局長與違法的分局長不可能追究自己的責任，因為這就是人類歷史上國家非法暴力的事實特徵。問 題是，整個國家的檢察系統應該是受過法學教育的一群人所組織起來的，那麼果真他們也看不到這一些事情，聽不到這一些事情，或者所接受過的教育不足以使心中 產生一些疑惑？是自我規訓嗎？或者檢察官們也想引用所學的「欠缺期待可能性」概念來為自己做辯解？就讓我們檢驗一下：我們這一個國家的國家非法暴力可以貫 徹到什麼程度？

International Federation for Human Rights:an open letter to Ma Ying-jeou et alre grave violations of human rights

This report collects

• the letter itself, which is posted at IFHR's web site
• also posted at TAIWAN Wild StrawBerries Movement web site
• A commentary 您最缺的國際觀：人權
• Taipei Times reports: Federation concerned about police response to protests

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www.fidh.org [english] > Asia > Taiwan

20/11/2008
Taiwan

Deep concern regarding the detention and attacks against citizens protesting peacefully during the visit of Chinese envoy Mr. CHEN Yunlin

Send

Open letter to

• President Ma Ying-jeou
• Premier Liu Chao-hsuan
• Republic of China – Taiwan

Your Excellencies,

The International Federation for Human Rights (FIDH) is writing to you to express its deep concern regarding the detention and attacks against citizens protesting peacefully during the visit of Chinese envoy Mr. CHEN Yunlin. FIDH believes that such arrests and violence are grave violations of human rights, under the pretext of national security.

According to the information received, since November 3rd, 2008, the city of Taipei has been heavily occupied by more than 7,000 police officers. The authorities have taken many drastic measures, including: confiscating and damaging private property, harassing and assaulting people who came too close to undefined or vaguely defined areas, clearing communal highway lanes with force, conducting random searches and arrests, and restricting the freedom of movement of citizens. These actions have been taken during Mr. CHEN’s visit, in the name of protecting security.

However, we fear these aggressions in fact aim at suppressing the right to freedom of expression of citizens. To supplement this violence, there are also unprecedented restrictions which clearly overpass the limits of ensuring security. For example, citizens have been restricted from displaying or carrying the national flag of Taiwan, forbidden to declare that “Taiwan is not part of China”, forbidden from carrying filming devices, and restricted from playing any music the authorities consider inappropriate.

These measures seem to be aimed at silencing political opinions rather than protecting security, and thus they blatantly violate the Constitution of Taiwan, notably Articles 11 and 14 which protect freedom of expression and international human rights standards. Consequently, FIDH requests that the National Police Agency and National Security Bureau, bound by the Constitution and the national legislation, should be held responsible for violating their legal obligations. The Judicial Yuan and Control Yuan should immediately conduct independent and impartial investigations into all allegations of human rights violations and hold all personnel in office accountable for neglecting their civil and legal obligations, in line with the Judicial Yuan’s recent statement that “it is very important to form an objective and solid review standard, and make the constitutional reviews more predictable and trust-worthy to people”. Those who perpetrated these violations, particularly in the National Police Agency and National Security Bureau, must be held accountable, in accordance with Article 24 of the Constitution of Taiwan, which stipulates that “Any public employee who, in violation of law, infringes upon the freedom or right of any person shall, in addition to being subject to disciplinary punishment in accordance with law, be liable to criminal and civil action. The victim may, in accordance with law, claim damages from the State for any injury sustained therefrom.”

More generally, FIDH calls upon the government to amend the Parade and Assembly Law, in particular : to abolish the requirement for mandatory permits and adopt the system of voluntary basis and the clause on special area of restriction, which gives too much discretion to the authority to restrict people’s freedom of association and freedom of expression. In addition the authorities should abolish the order to dismiss as well as the provisions on special criminal punishment, which is a legacy of the martial law era. Finally, Taiwan should establish the protocol for law enforcement personnel who should have the obligation to clearly announce his or her identity when on duty, to ensure legitimacy and accountability.

Your Excellencies,

Our Organization firmly believes that the fruit of Taiwan’s remarkable democratization has landmark significance to the Asian continent as a whole. We therefore express our serious concern over the alarming human rights degradation in Taiwan, and we do take it as a signal of a negative trend undermining the values of democracy and human rights on which Taiwan should be based. Hoping that you will take into consideration the above mentioned concerns, I remain,

Yours sincerely,

Souhayr Belhassen

• FIDH President

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您最缺的國際觀：人權

◎ 劉順明

總 部在法國巴黎的國際人權聯盟（FIDH，成立於一九二二年，是全球最早的國際非政府人權組織，聯盟成員來自一百多個國家），十一月二十日發表給台灣政府的 一封公開信"Deep concern regarding the detention and attacks against citizens protesting peacefully during the visit of Chinese envoy Mr. CHEN Yunlin"（參見http://www.fidh.org/spip.php?article6006）， 信中對馬政府假國安之名行侵犯人權之實頗多批評("FIDH believes that such arrests and violence are grave violations of human rights, under the pretext of national security.")。

此外，我也收到朋友從美國轉寄過來的email，是美國「自由之家」剛剛發布的新聞稿，內容是呼籲馬政府成立獨立機構，調查陳雲林來台時，因警民嚴重衝突，所造成的侵害人權事件（參見http://www.freedomhouse.org/template.cfm?page=70&release=725）。

更早，新聞週刊(Newsweek)也在十一月中旬，由北京局負責人劉美遠(Melinda Liu)針對馬政府一連串快速逮捕卸任總統、前朝官員所引起台灣社會對司法獨立的質疑，以及陳雲林事件公權力執法過當，作了深入分析（http://blog.newsweek.com/blogs/chinacalling/archive/2008/11/12/fallout-from-chen-shui-bian-s-dramatic-arrest.aspx）。

劉美遠文章指出，因為馬政府大量逮捕前朝官員，史無前例地讓二十位（目前已經增加至二十四位）關心台灣司法人權的國外學者聯名發表公開信"Political arrests and detentions in Taiwan"(http://www.taiwandc.org/Statement%20arrests%20Nov%202008.htm)，表達嚴重關切，並質疑台灣司法獨立性。而中國特使陳雲林來訪期間，因警察強勢執法，導致大規模流血衝突，也是台灣民主化以來罕見。

從「自由之家」、國際人權聯盟相繼對台灣人權的關心，以及國外學者聯名公開信質疑台灣司法，和劉美遠的文章，不正是在對台灣逐漸流失的民主成果，提出嚴重警訊嗎？

中國惡劣的人權問題是國際版面的常客，曾幾何時，台灣的人權水準似乎也有漸漸跟中國看齊的趨勢，成了知名人權組織關心的對象。孰令致之？完全執政且掌有絕對權力的馬政府難辭其咎。

過去中國國民黨長期執政時，總是灌輸台灣人一個觀念：經濟好最重要。讓台灣人對於自己的基本人權與政治權利一知半解。所幸，在許多勇於衝撞體制的民主前輩的犧牲下，才換來今天的民主成果。然而，似曾相識的威權場景，似乎又悄悄地回來了。

馬總統曾經在媒體公開讚揚並要學習新加坡，馬上令人聯想到新加坡的「開明專制」。以馬政府這半年相關施政作為，包括兩岸簽訂協議規避民意監督、漠視人民大規模遊行以及罔顧人權的跡象顯示，馬先生似乎正朝著「專制」道路邁進。至於「開明」與否，則依其慈悲心自由裁量了！（作者為美國卡內基美隆大學公共政策與管理碩士）

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Federation concerned about police response to protests By Rich Chang
STAFF REPORTER
Monday, Nov 24, 2008, Page 3

The International Federation for Human Rights has become the latest international group to express concern regarding the response of police to protests against Association for Relations Across the Taiwan Strait Chairman Chen Yun-lin (陳雲林) earlier this month.

The Paris-based group sent letters to President Ma Ying-jeou (馬英九) and Premier Liu Chao-shiuan (劉兆玄) on Wednesday, expressing concern over what it called “grave violations of human rights” committed by police during the protests.

The police’s actions were aimed at suppressing freedom of speech, the group said.

In the letter, the federation said the authorities “had taken many dramatic measures, including: confiscating and damaging private property, harassing and assaulting people who came too close to undefined or vaguely defined areas, clearing communal highway lanes with force, conducting random searches and arrests, and restricting the freedom of movement of citizens.”

The organization said it feared the “aggressions” were intended to suppress “freedom of expression of citizens.”

“These measures seem to be aimed at silencing political opinions rather than protecting security, and they blatantly violate the Constitution of Taiwan [sic], notably Article[s] 11 and 14 which protect freedom of expression and international human rights standards.”

“The police and national security authority should be held responsible for violating their legal obligations,” the group said.

It called on the Judicial Yuan and Control Yuan to investigate the allegations of human rights violations.

It also called on the government to amend the Assembly and Parade Law (集會遊行法) to abolish the requirement that protest organizers apply for permits from the police.
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Melinda Liu of Newsweek: ... "People were very upset"

Fallout from Chen Shui-Bian's Dramatic Arrest

[Please find a Chinese translation at the end.]

Wednesday, November 12, 2008 11:51 PM

By Melinda Liu

China has denied that it put pressure on Taiwan to arrest former President Chen Shui-bian, who's been arrested, accused of embezzlement, money laundering, taking bribes, and forging documents while in office. Chen, a long time opponent of reunification with Beijing, accused his successor Ma Ying-jeou of ordering his detention to curry favour with mainland China’s leaders. He has yet to be charged, but may be held for up to four months while prosecutors prepare their case against him. As Newsweek’s Duncan Hewitt writes, the case highlights growing political rifts in Taiwan over relations with China:

The detention of Chen Shui-bian on corruption charges, coming so soon after new president Ma Ying-jeou signed accords authorizing historic direct shipping links with mainland China, could be seen as yet another victory for Mr Ma and his Kuomintang party (KMT), as they seek to consolidate power after eight years in opposition. But in practice, Mr Chen’s detention is likely to highlight political tensions which have growing in Taiwan since President Ma’s accession in May this year.

Hopes that Mr Ma, a Harvard-educated lawyer seen as relatively moderate, would bring consensus to a society long fragmented over attitudes towards reunification with the mainland, have been shattered. Polls have shown his popularity plunging from some 60% to around 23% in late October. There is undoubtedly much public anger in Taiwan towards Chen Shui-bian, who has admitted breaking the law by not fully disclosing campaign donations -- but the arrests of seven other figures associated with his Democratic Progressive Party, also in connection with corruption allegations, over the past few months, have led to fears being raised about the independence of Taiwan’s judiciary under the new leadership.

Such warnings have not just come from traditional DPP supporters. Last week, before Mr Chen’s arrest, twenty prominent international Asia specialists, including Professors Arthur Waldron of the University of Pennsylvania, Bruce Jacobs of Monash University and June Teufel Dreyer of the University of Miami, along with former Far Eastern Economic Review Taipei correspondent Julian Baum, issued an unprecedented open letter expressing “deep concern” at the behaviour of Taiwanese prosecutors. “It is obvious that there have been cases of corruption in Taiwan,” they wrote, “but these have occurred in both political camps.” The recent detentions, they said, had created an impression that the KMT authorities “are using the judicial system to get even with members of the former DPP government.” They accused prosecutors of “a basic violation of due process, justice and the rule of law,” by holding several detainees incommunicado without being charged, and of “trial by press” by leaking detrimental information to the media. They suggested that such actions were jeopardizing the achievements of Taiwan’s transition from one party rule (by the KMT) to democracy in the late 1980s and early 90s.

Allegations of a regression to past authoritarianism also surfaced last week, when China’s top negotiator, Chen Yunlin, visited Taiwan to sign the historic accords allowing direct air, postal and shipping links between Taiwan and the mainland. There is actually a fairly broad consensus of support in Taiwan for the opening of such links – indeed most of the details of the accords were negotiated when Chen Shui-bian and the DPP were still in power. But final agreement could not be reached back then because Mr Chen would not accept China’s demand that he must first accept Beijing’s “One China” concept (which basically means accepting that Taiwan is part of China and the two sides will one day be reunified, even if they differ on the exact means to achieve this.)

But President Ma’s approach to the visit of Chen Yunlin, the most senior mainland official to visit Taiwan for six decades, seemed calculated to upset his opponents. Critics accused him of bending over backwards to “give face” to the mainland delegation: the official flag of Taiwan, which Beijing does not recognise, was not flown at the presidential palace when Mr Chen visited; the President was addressed by the mainland delegation as plain Mr Ma, since Beijing does not recognise his presidential status. Equally controversially, would-be protesters were refused permission to stage demonstrations against Mr Chen’s visit.

Such refusals are rare in Taiwan’s democratic era – and when protesters did try to demonstrate anyway, they were met with police beatings that left over 100 people injured and shocked many who thought Taiwanese society had turned its back on such brutality. “People were very upset,” says Frank Muyard, Director of the French Centre for Research on Contemporary China in Taipei. “For the police to use force against peaceful protesters is something which hasn’t been seen in Taiwan for perhaps 16 years, since before [former President] Lee Teng-hui took full power during the transition to democracy.”

Public anger spilled over, leading to chaotic scenes when Chen Yunlin was prevented from leaving his hotel for hours by furious demonstrators. Students and academics seeking to protest peacefully at the government’s handling of the affair were also dispersed by police, leading to an open letter by 500 academics calling for the right to free speech to be protected, and for a probe into police violence. The English-language Taipei Times newspaper, while criticising leaders of the opposition DPP for not discussing plans for Chen Yunlin’s visit with the government in advance, accused Ma and the KMT of ‘reverting to time-dishonored tactics reminiscent of the Martial Law era.”

“Deploying 7,000 police officers over a four-day period and restricting the public’s freedom of movement were a recipe for disaster,” it said in an editorial, adding that Mr Ma “either misjudged public opinion, showing how ineffective he is as the nation’s top decision-maker, or he didn’t care about the political ramifications of his actions — at least not in Taiwan.”

Critics accused him of grandstanding by turning Chen Yunlin’s visit into such a big event – when the accords could have been signed with much less fanfare and public fallout – and of alienating anyone with doubts about closer ties with the Chinese mainland. This was highlighted on Tuesday when an 80-year \-old man, claiming to be a long-standing KMT member, set himself on fire in central Taipei, in protest at what he said was excessive police brutality against marchers carrying Taiwan’s official flag during Mr Chen’s visit; he was taken to hospital with third degree burns over 80% of his body.

These events have left a society long used to fragmentation - where most academics, analysts and media organisations are on one side or the other of the political divide – still reeling at the increase in political tension under President Ma: “Chen Shui-bian was a very divisive figure,” says Frank Muyard of the French Centre for Research on Contemporary China. “People hoped Ma would be more conciliatory – they saw him as a gentle, well-educated, nice person who would help Taiwan come together and do something for reconciliation. But he hasn’t done that. Now many people see him as partisan, too eager to please China – they don’t trust him to defend Taiwan’s sovereignty.”

For the mainland government, which has reported the opening of cross-strait links with great fanfare as a ‘win-win’ situation for both sides, there’s a clear degree of satisfaction in seeing Chen Shui-bian under arrest. Beijing despised him for his background in Taiwan’s pro-independence movement of the 1970s and 80s. “Chen Shui-bian in handcuffs” was the banner headline in the popular nationalist tabloid newspaper the Global Times on Wednesday. And for months China’s state-run media has revelled in reporting every detail of the various allegations of corruption against Mr Chen, his wife and associates (in marked contrast to the minimal amount of detail it gave in the corruption case of another Chen, former Communist Party Secretary of Shanghai Chen Liangyu, who was jailed for eighteen years in April.)

Ma Ying-jeou’s popularity with China’s leaders, on the other hand, is clearly at an all-time high: as well as agreeing to direct links and the One China principle, he has also relaxed restrictions which prevented Taiwanese companies from investing more than 40% of their assets in the mainland, further boosting economic ties. Yet recent events suggest his actions may also risk provoking a deeper anti-mainland backlash, at the very moment when physical links between the two sides of the Taiwan Straits have become closer than ever.

--
【外電】陳水扁被戲劇性收押的風暴
Melinda Liu

【譯註】因版權關係，本譯文業經刪節

中國否認對台灣施壓逮捕陳前總統。他因被控在任期間，盜用公款、洗錢、收賄及偽造文書而遭逮捕。陳水扁長期反對與中國統一，指控其繼任者馬總統下令將他收押，以取悅中國領導階層。他還沒被審判，但可能被羈押最多四個月以便偵查，如新聞週刊Duncan Hewitt報導，此案凸顯台灣政治分歧逐漸加劇。

在馬總統與中國大陸簽署歷史性的直航協議後不久，迅速以貪污罪收押陳前總統，可視為馬總統與其國民黨在野8年後，尋求鞏固政權的另一勝利，但實際上，羈押陳前總統，或將突顯自馬總統於5月上任後台灣內部逐漸升高的政治緊張。

外界已無法期待在哈佛受教育、被視為相對溫和的馬總統，可為對兩岸統一意見分歧的社會帶來共識。10月底的民調顯示，其支持率已自60％下滑至23％。台灣民眾對陳前總統感到憤怒是無庸置疑的，因為他已承認違法未完全申報競選政治獻金，但最近幾個月來，其他7名與民進黨有關人士因貪污指控而遭收押，讓外界憂慮新政府領導下台灣司法的獨立性。

不僅傳統民進黨支持者提出類此警告，在陳水扁被羈押前的上個星期， 20位國際知名亞洲專家，包括賓州大學教授林蔚(Arthur Waldron)、澳洲蒙那許大學教授Bruce Jacobs、邁阿密大學教授金德芳（June Teufel Dreyer），及前遠東經濟評論台北特派員Julian Baum等人共同發表史無前例的公開信【譯注：請參閱doctor61大大所提供的網頁http://blog.yam.com/modernhippie/article/18059774】，表達嚴重關切台灣檢察官的行為。該公開信指出，「台灣一直有貪污事件，且兩個政治陣營皆有。」他們表示，近期收押事件帶來國民黨政府「藉司法制度報復前民進黨政府官員」的印象。指出檢察官在被指控者未被正式起訴情況之下就被收押禁見，「嚴重違反了人身保護令以及正當法律程序、公義與法治。」他們也指責檢察官很明顯地將相關不利消息透露給媒體，是「透過媒體辦案」；在八零年代後期與九零年早期成功轉型為民主的成就，將因這些行動而被破壞。

主張台灣民主倒退回獨裁的論點，已在上週陳雲林訪台簽署歷史性協議時浮現，這些協議得到相當支持，實際上，部分內容早在陳水扁和民進黨執政時就已經談判過，但因陳總統不接受「一個中國」原則而破局。

但馬總統接待陳雲林的作法，似乎是有計畫的擾亂反對者。批評者指控馬總統為了對中國代表團「給面子」而讓步太多，如陳雲林在台期間，總統府未懸掛不為北京承認的官方國旗，由於馬總統的地位也不被北京承認，被陳雲林稱呼為馬先生；同樣引起爭議的是：拒絕批准民眾示威。

在台灣民主時期，類此駁回事件甚為罕見。而當抗議者試圖示威時，他們遭警察毆打，導致逾100人受傷，許多人驚覺台灣社會變得更殘忍。台北的法國當代中國研究中心主任 Frank Muyard指出，「自李前總統在民主轉型期間完全掌權後，16年來台灣未見警察使用武力對付和平抗議者。」

民眾的忿怒爆發，導致示威者將陳雲林圍困在旅館的混亂場面，大學生想以和平方式抗議政府的處置措施，也被警察驅散，促使500名大學生以公開信呼籲保護言論自由並調查警察的暴行。英文報紙台北時報在責備民進黨未事先就陳雲林訪台與政府協商之同時，更指責馬總統與國民黨「恢復使用戒嚴時期的戰術」。

其社論指出「在那四天部署7000名警察限制民眾的行動自由，是災難的起緣」，又稱馬英九「若不是誤判民眾的意見，反映他是毫無效率的國家決策者；就是他一點也不在乎其行動引發的政治分歧。」

批評者指責他把陳雲林訪台變成大事件，激化民眾對兩岸關係的疑慮。一位80歲的老國民黨黨員於週二在台北市中心自焚，突顯了這事件的爭議，他抗議拿國旗的民眾被警察粗暴對待，結果三級燒傷全身超過80%灼傷，被送到醫院治療。

這些事件讓這個長久分歧的社會因為馬英九造成的政治緊張而更動盪。「陳水扁是非常具爭議的人物」法國當代中國研究中心主任 Frank Muyard指出：「民眾希望馬英九會多點善意，認為他是溫和、有教養的好人，有助於凝聚台灣，以及做些促進和好的事，但他並不這麼做，現在許多人認為他與中國是一夥的，過於討好中國，他們不相信他能護衛台灣的主權。」

對誇大報導江陳會談是雙贏的中國政府而言，看到陳水扁被捕在某種程度上是感到滿意的，北京蔑視他在1970與80年代的台獨背景。流行的民族主義小報環球時報在週三以頭條報導「陳水扁被銬」，國營媒體好幾個月來一直詳細的對陳水扁家族進行各式各樣的指控(用來對照今年四月剛被判刑18年的前上海共黨書記陳良宇)。

另一方面，馬英九同意直航、一個中國原則、鬆綁台商不能對大陸投資超過40%的限制，顯然一直高度受到中國領導者歡迎。近期事件顯示，在兩岸實際關係較以往更為緊密之際，馬總統的作法也許會冒著引發更大的反中聲浪的風險。

【譯註】作者在字裡行間顯然認為台灣的民主已經是過去式，這實在是台灣的悲哀，經過昨天震驚世界的報導後，國際媒體逐漸從一連串的事件中嗅出馬英九政府正在製造台灣的動亂。

士林地方法院法官洪英花:誓死捍衛正當法律程序

誓死捍衛正當法律程序

◎ 洪英花

一、 違反正當法律程序原則，即對人民基本權的違憲侵害：我國釋字第四一八號解釋「憲法第十六條保障人民有訴訟之權，旨在確保人民有依法定程序受公平審判之權 利。」釋字第四三六號解釋「國家刑罰權之發動與運作，必須符合正當法律程序之最低要求。」法治國的基本原則，即在維護國家法律秩序，保障基本人權，實現憲 法所保障的正當法律程序。刑事程序之任務不只在發現真實，且必須維護憲法所保障犯罪嫌疑人之人性尊嚴與基本人權，唯有在保障人權的原則下，依據正當法律程 序原則，追求偵查與審判之公平性，社會正義乃得以實現。程序正義乃法治國家刑事程序中不容抹滅的核心價值。

依據無罪推定原則衍生的犯罪偵查 不公開程序，乃為兼顧偵查成效與人權保障原則，我國刑事訴訟法第二四五條明定「偵查，不公開之。檢察官…或其他於偵查程序依法執行職務之人員，不得公開揭 露偵查中因執行職務知悉之事項。」即偵查秘密原則，凡偵查行動及偵查內容均不得對外透露，以免消息走漏，發生湮滅證據、勾串共犯或偽證，尤應防止媒體得 知，造成輿論審判，嫌疑人名譽遭受莫大損失，被調查人若為商業公司，導致財務危機。

二、秘密偵查原則：秘密偵查原則，乃維護人權的普世價 值，部長縱容相關人士在偵辦相關案件期間內放消息給媒體，經外界質疑後，遲至九十七年十月間始發出函件，要求特偵組自己調查內部洩密及查辦媒體供出消息來 源，是否藐視人權及程序正義？並違背法律人自律、反求諸己之道？令人不解。

三、未審先判，踐踏人權：部長縱容洩密者放消息給媒體，恐有誤導 閱聽大眾之虞，造成輿論審判，而「法官是人，不是神」更是閱聽大眾，在被告或犯罪嫌疑人還沒有被起訴前，大量接收閱聽內容後，如何能夠確保未來審判程序之 純潔與公正？在刑事程序中，被告人權應受保障與尊重，乃法治社會顛撲不破之理，如被告在法庭，不得拘束其人身自由，蓋為避免被拘束之形貌，誤導法官或陪審 團先入為主，造成胸有定見之誤判。洩密者是否該受嚴正之制裁？洩密者所導致相關當事人之人權危害，如何回復？

四、行政干預司法，法律不容：部長上節目大談個案，並發新聞稿承認「法務部僅就司法行政有關之司法互助部分向院長提出報告」以上所為，有無涉及偵查應秘密之事項？案件當頭，司法行政有無謹守分際，僭行干預司法？

五、 社會責任—誓死捍衛正當法律程序：一般社會大眾、媒體對法治認識不清，尚可理解，今因為偵查秘密原則未被嚴守，正當法律程序失守，危及台灣法治，整個社會 氛圍陷入人權法治危機之境地，司法行政監督完全停擺，部長上電視大談個案，更是破歷任部長之風骨與堅持，部長是否應拿出過去援助弱勢族群的熱情，擔負起法 治教育領航者的社會責任，引咎下台以挽救台灣人權！

（作者為士林地方法院法官）

Demand immediate release of innocent prisoners III :Innocent people facing death penalty

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There are no cases against 陳水扁 or 陳 明文. The judicial system has not placed any charges against them; so the law clearly states that they are innocent. Yet, already they have been held prisoners, thoroughly humiliated and tortured and in danger of death.

The judicial system must stop such completely illegal and inhumane persecution and release all innocent prisoners immediately!