In the recent events in which Taiwanese were allegedly involved in telephone frauds in foreign countries, several Taiwanese were either forcibly deported from Kenya to China, prompting criticism that the government had failed to protect its citizens, or deported from Malaysia to Taiwan — but due to the lack of relevant documents and evidence they were not immediately arrested and detained — which sparked doubts over the government’s capacity to fight crime.
The government seems to be caught in a dilemma and cannot make the right decisions. What exactly should the government do to deal with extraterritorial crimes committed by Taiwanese?
The problem only becomes even more complicated and difficult to tackle when the people affected by the crime are Chinese, the reason being the peculiar political situation across the Taiwan Strait.
To begin with, a nation should protect its citizens, for which the state is founded. This particular raison d’etre of the nation-state is evidenced in international extradition law and was the foundation of the principle of non-extradition of nationals. Article 4 of the Law of Extradition (引渡法) and Article 8 of the People’s Republic of China’s Extradition Law were both legislated based on this principle. The state has to protect its citizens, irrespective of whether they commit extraterritorial crimes. Hence, when Taiwanese are deported to China or other countries against their will, the government should do its best to protect them.
However, if a Taiwanese did commit a crime, and after our government’s negotiation with another nation they were able to return to Taiwan at their will, but were not prosecuted and penalized, this outcome would naturally erode the justification for the nation’s protection of its citizens.
That is why some lawmakers recently proposed amending the Criminal Code so that it would apply to extraterritorial crimes committed by Taiwanese, thereby preventing similar problems from happening again.
However, crimes committed in China by Taiwanese are still punishable in Taiwan, regardless of whether China is the nation where the crime is committed or the place where the crime has its effect, according to Article 75 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area (臺灣地區與大陸地區人民關係條例), as precedents show.
For instance, in 2012, Taiwanese suspected of committing fraud in the Philippines were deported to Taiwan.
In addition, can sufficient documentary evidence be produced in a timely fashion? If the evidence is insufficient, but the government is still asked to forcibly prosecute and punish the suspects, this is not combating crime, but quite possibly persecuting the innocent.
Theoretically, if Taiwanese commit fraud against Chinese, and after negotiations, they are able to return to Taiwan, then the nation that would have the most pressing motive and needs to supply evidence to facilitate prosecution and trials should be China.
If China intentionally declines to provide evidence or judicial assistance, Beijing should face criticism from within the nation and cannot blame our government for not making enough effort to tackle crimes.
Likewise, if Chinese commit fraud in a third nation that harms Taiwanese, and the suspects are sent to China and the Taiwanese government refuses to provide relevant evidence to China, how can China prosecute and charge these people with fraud?
In practice, evidence of extraterritorial crimes is difficult to produce and the criminals are difficult to prosecute, which is why the Agreement on Jointly Cracking Down on Crime and Mutual Legal Assistance Across the Strait (海峽兩岸共同打擊犯罪及司法互助協議) was signed. In the agreement, fraud is the major crime that both sides of the Taiwan Strait want to tackle.
However, at this stage, the negotiated cross-strait cooperation only goes so far as to “repatriate” the suspects, not “deport” them.
Both countries’ extradition laws adopt the principle of non-extradition of nationals to protect their citizens.
Just because the evidence is in the hands of another nation or because it is more convenient for another nation to prosecute the suspects does not mean the suspects’ home nation should relinquish the right to protect its own citizens and allow them to be deported to another nation for prosecutions and trials.
In this situation, if any nation refuses to provide evidence because it wants to highlight the incapacity of the suspects’ home nation to combat crimes effectively, this nation would be violating the shared motive to combat crimes and therefore should be chastised and condemned.
Henry Tsai is a judge at the Taiwan Shilin District Court.
Translated by Ethan Zhan
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