Mon, Sep 21, 2009 page8

• An NIA branch that’s above the law

  • By Kao Jung-chih 高榮志
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  In a speech to mark Lawyers’ Day on Sept. 9, President Ma Ying-jeou (馬英九) said that “absolute power corrupts absolutely,” adding that he was always aware of this and constantly reminded himself to fully respect the separation of powers and governmental checks and balances.

  The executive branch, he said, would respect the independence of the legislature and never interfere in the judiciary.

  At almost the same time, prosecutors were searching the office of the head of the National Immigration Agency’s (NIA) Special Operation Corps in Taichung, collecting evidence and applying to have him detained on charges of sexual harassment.

  A brief investigation of the Special Operation Corps shows us that it has close to absolute executive and judicial power — the kind of power that is bound to lead to absolute corruption sooner or later.

  The Special Operation Corps is a department of the NIA, which in turn falls under the Ministry of the Interior. It therefore has executive powers, principally to investigate foreigners — in most cases foreign migrant workers and people from China residing illegally in Taiwan — and to detain and deport them.

  It goes without saying that people residing illegally within a nation’s borders — be it through illegal immigration, fake marriages or by working illegally — have to be detained for a certain period between the conclusion of the investigation and the time of their deportation.

  This detention is authorized by an administrative measure: Article 38 of the Immigration Act (入出國及移民法) calls it temporary detention, which in principle limits detention to 60 days, although it can be extended “if necessary.”

  At first glance there is nothing obviously wrong with the terms of the law, but implementation is another matter altogether.

  First, detention is in reality a limitation on the individual freedoms guaranteed by the Constitution.

  Regardless of whether it is prettified by calling it protection, detention, or imprisonment, it is still a matter of locking people up and, in the case of migrants, there is no judicial intervention in the decision to lock people up.

  This in itself can be said to be a flaw in the formulation of this law.

  Even more absurd, the NIA often turns the exception into the rule by extending “temporary” detention beyond 60 days. Not surprisingly, this situation has repeatedly been a target for criticism by Taiwanese and overseas human rights advocacy groups.

  In practice, the Specialized Operation Corps is in charge of detentions. It catches illegal residents, locks them up and decides whether to extend their detention.

  The Specialized Operation Corps thus has a great number of functions rolled into one.

  Even in the case of people suspected of committing serious crimes, prosecutors are required to apply to a court for approval to keep them in detention, and their detention can only be extended once, for a maximum of four months.

  The Specialized Operation Corps, on the other hand, does not need the approval of a judge and detainees are not given the protection of any procedure for arguing their case before their detention is extended.

  The corps can detain people indefinitely without giving any reason, which grants it unbridled power over migrant workers.

  This situation makes a complete mockery of the constitutional principle of checks and balances on power.

  In addition, one can imagine how detainees will bow their heads and swallow any insult to avoid offending the Specialized Operation Corps to ensure that their return home proceeds smoothly.

  This gives the corps exclusive control over the lives of detainees.

  Short-term detention before deportation may be fine, but if a detainee is suspected of criminal involvement, and as long as his treatment does not fall below the standards set out in the Code of Criminal Procedure, suspicions that detention can be replaced by administrative measures may be temporarily ignored.

  Some foreigners held in long-term detention are in fact witnesses to, or even victims of, crime, but languish in jail while the wheels of justice grind on at a snail’s pace — just to ensure that they will appear as witnesses in court.

  Of course, not everything about the Specialized Operation Corps is negative. It has a small number of staff who must deal with a lot of tasks. In that respect, they are deserving of sympathy.

  The problems, however, are more widespread and ultimately it is prejudice that is to blame.

  Many Taiwanese believe that human rights do not fully apply in the case of people from Southeast Asia or China.

  As long as such attitudes persist, it should come as no surprise if the abuse of human rights continues.

  Kao Jung-chih is a lawyer and an executive board member of the Taiwan Association for Human Rights.

  TRANSLATED BY JULIAN CLEGG
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