Mon, Feb 28, 2011 - Page 8 News List

Extradition case has ramifications

By Chen Rong-jye 陳榮傑

The Philippines deported 14 Taiwanese fraud suspects to China, on the latter’s request. This has set a precedent that may well have dire consequences.

The extradition of suspects is a very serious and complex legal and political process that involves both sovereignty and jurisdiction. What generally happens is that the legality of an extradition request is determined by the courts before the executive branch makes a political decision.

Article 21 of Taiwan’s Extradition Act (引渡法) states that after a resolution is made by the court, the case must be submitted to the president for confirmation. Clearly, extraditions are to be taken very seriously. So why did the Philippines act in so cursory a manner here?

First, the Philippine presidential office said that it deported the Taiwanese in line with the “one China” policy. It would be good if Taiwan’s government could tell the public whether China had identified the 14 suspects as Chinese or Taiwanese when it made the extradition request. Why would the Philippines have specifically mentioned the “one China” policy had Beijing not insisted that Taiwan is a part of China, meaning that Taiwanese are to be seen as Chinese?

Allowing China to extend its jurisdiction unhampered really is a serious dereliction of duty on the part of our government.

From a legal perspective, Taiwan, China and the Philippines all have so-called jurisdiction in this particular case, in what is called “concurrence of jurisdiction.” The Philippines has “territorial jurisdiction” because the crime was committed on its soil. Taiwan has “nationality jurisdiction” over 14 of the 24 suspects concerned and China could claim “passive personality jurisdiction” or the “protective principle of jurisdiction” because its own nationals were the victims of the crime.

According to international practice, the Philippines’ territorial jurisdiction gets priority in such competitive jurisdiction, followed by Taiwan’s nationality jurisdiction. China’s case for extradition, based on the principles of either passive personality or the protective principle, is relatively tenuous.

It is generally accepted that a nation’s criminal code does not apply extraterritorially, and the protective principle of jurisdiction is usually limited to serious crimes involving national security or other matters involving vital national interests.

Let’s look at the significance of international treaties on extraditions, and how such matters actually transpire in practice. The Philippines is in no way obliged to act on China’s request for the extradition of the nationals of a third country, in this case Taiwan. Taiwan has not signed an extradition treaty with the Philippines, so the latter has no legal obligation to hand over criminals to Taiwan in international law, either. That is the legal side.

International practice does suggest, however, that the Philippines should at the very least have given Taiwan some form of official notification regarding China’s request, based on the principle of international comity. It might have solicited our consent, or invited us to participate in the extradition process, so as to ensure the interests of the suspects were protected.

In its handling of this matter the Philippines has not only failed to give Taiwan procedural justice, it has also failed to take into consideration the fact that China, given the situation in that country vis-a-vis human rights and the rule of law, is perhaps not the most appropriate venue to send the nationals of a third country for trial.

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