Some groups have put forward their own draft for a law to govern the supervision of cross-strait agreements. However, the governing and opposition parties, perhaps harboring dreams of holding power in a “super-presidential system,” have not shown much interest in the bill, and it has hardly moved forward through the legislative process.
However, two recent cases illustrate the urgency of setting up a system to monitor cross-strait negotiations, along with related judicial measures, and this cannot be delayed any longer.
The arrest of Taiwanese actor Kai Ko (柯震東) in Beijing on Aug. 14 for alleged narcotics use has exposed the extent to which Taiwan has become a vassal state with regard to cross-strait judicial matters.
Meanwhile, the case involving former Mainland Affairs Council (MAC) deputy minister Chang Hsien-yao (張顯耀), who said he was forced to resign, highlights political tutelage in the upper echelons of government.
Anyone who is even vaguely familiar with how various countries compare with regard to the rule of law and due legal process knows that China is widely considered to be one of the riskiest countries when it comes to safeguards for basic rights. The narcotics case involving Ko and Hong Kong actor Jaycee Chan (房祖名) is only the tip of the iceberg.
What it does make very clear is that Taiwanese officials have a very low sense of risk, and that their ability to respond falls far short of international standards. It also exposes the vassal-like attitude that they always take under the existing cross-strait judicial framework.
Countless Taiwanese who are in China doing business, working, studying or traveling, risk sharing Ko’s experience of getting arrested and detained for several days before their detentions are announced, and then being shown on national television confessing to whatever accusations they face, just as accused criminals used to be paraded through the streets, all in violation of their legal rights.
However, the council is accustomed to “reporting to superior officials,” quite contrary to the system of constitutional government, while sometimes contradicting the negotiators it dispatches to conduct cross-strait negotiations.
Up until now, aside from saying that it will “raise the matter with the Chinese side through the usual channels,” the council has not offered the public any remotely convincing solutions.
The council and the Ministry of Justice’s Investigation Bureau have been talking about how someone has intentionally leaked secrets and even spied for the Chinese communists. Chang was the lead cross-strait negotiator, having been specially appointed by President Ma Ying-jeou (馬英九). If the accusations are true, and if the person in question really was Chang, does the scandal not reveal that almost nothing has been achieved in terms of systems for risk management and supervision of negotiations for cross-strait agreements?
Within the establishment, this includes all sorts of administrative procedures and national security structures; it also includes monitoring from without by the legislature and civic society.
How can such a shocking breach in the legal system governing cross-strait negotiations be handled by rewarding the person in question by appointing him as chairman of a state-run enterprise? This case has given rise to grave doubts regarding the handling of cross-strait and national security affairs. How can one describe it when the authorities handle such a serious matter in such a way, other than a despicable mafia-like culture?
Minister of Justice Luo Ying-shay (羅瑩雪) has been equally feeble and inept when confronted by cross-strait issues. Asked about Ko’s case, she seems to be concerned only with how effective or otherwise anti-narcotics public information films have been.
Although the Cross-Strait Bilateral Investment Protection and Promotion Agreement requires notifying the other side within 24 hours when someone is detained, the Chinese authorities have been saying that only investors and related personnel are protected by the agreement, so it does not apply to an entertainer like Ko.
The ministry has said nothing about the fact that another pact, the Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement, includes similar requirements, as well as rules about “humanitarian visits.” According to the agreement, the two sides agree to “promptly inform the other side of persons whose liberty have been restricted, died from unnatural causes or suspected unnatural causes, and other major incidents, and to facilitate visits by family members in accordance with each party’s own rules and regulations.”
What the ministry should be telling the public is that Article 3 and following articles of the investment agreement concerning the security of investors and related personnel should surely apply to the company that Ko works for, and that Ko should also be covered by the judicial mutual assistance agreement.
To make matters worse, the ministry has by its own actions demonstrated how the principle of the presumption of innocence can be trampled underfoot by making statements that accept without question the Beijing Public Security Bureau’s claim that Ko was smoking marijuana.
The ministry went further by coming to the inappropriate and ridiculous conclusion that Ko could be charged under Taiwan’s Narcotics Hazard Prevention Act (毒品危害防制條例) and be made to undergo mandatory rehabilitation.
It is even more unacceptable for the Taipei District Prosecutors’ Office to suddenly launch an investigation into cases involving narcotics use by Taiwanese and Chinese entertainers with no respect for legal principles concerning evidence, and without having instituted the proper judicial procedures.
Why is the government surrendering its right to speak regarding the interpretation of these agreements and laws? Why does it cling so closely to the Chinese government’s narrow interpretations? How many things has Taiwan’s government failed to do in view of the Chinese authorities’ clear failure to inform the Taiwanese side about detentions, as stipulated in the aforementioned cross-strait agreements?
Cross-strait agreements are full of ill-defined language. Negotiations are conducted behind closed doors, and now there are suspicions that at least one negotiator may have divulged state secrets or even spied for China. When agreements have been signed, the government voluntarily gives up its right to interpret the terms of those agreements and demand that they be carried out.
In view of all this, how can Taiwanese agree to live under cross-strait legal arrangements that revolve around a culture of political tutelage? Is it not time to establish a comprehensive legal framework governing cross-strait agreements? The answer will be quite obvious to anyone who is familiar with basic juristic values.
Liu Ching-yi is a professor at National Taiwan University’s College of Social Sciences.
Translated by Julian Clegg
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