Taiwan has sent a Ministry of Justice-led contingent to China for talks on how to deal with the repercussions of the Kenya incident.
China is adamant that it holds criminal jurisdiction over the deported Taiwanese fraud suspects, and many Taiwanese feel that a firm hand needs to be taken with fraud, so that it would be best if China did have jurisdiction in this case. Nevertheless, given China’s stance on this issue, and with the long-term development of cross-strait relations in mind, it would be preferable if China returned the Republic of China (ROC) citizens to Taiwan. There are three reasons for this.
First, under the People’s Republic of China (PRC) constitution — both the foreword and Article 31 — and the legislation concerned, such as the Measure for the Control of Chinese Citizens Traveling To or From the Region of Taiwan (中國公民往來台灣地區管理辦法), China still treats Taiwan as a special area — under what it calls the “one country, two systems” model — despite its insistence upon the “one China” principle.
That is, it acknowledges that Taiwan and China remain different legal territories over which each independently exercise their respective judicial powers. Since they are different legal territories, it is only natural that conflicts over jurisdiction might arise, such as when either legal territory makes an extradition request to a third nation.
Hong Kong, for example, has signed extradition treaties with many nations. However, unlike with state-to-state relations, when two legal territories in the same nation submit an extradition request to a third nation, they should first enter into talks, and then proceed with the extradition in line with the outcome of those talks.
What they should not do is vie with each other over the extradition, as might be the case between two separate nations.
In the Kenya case, China failed to discuss the issue in the first instance, and made a unilateral decision to have ROC citizens sent to China, as if Taiwan were a third nation. This, then, violates China’s own “one China” principle.
Second, there still exists between China and Taiwan the Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement (海峽兩岸共同打擊犯罪及司法互助協議). This agreement adopts the principle that the citizens of one party not be sent to the other, even when, in practice, both parties adhere to the nationality principle — the idea that a nation exercises sovereign jurisdiction, even if it violates sovereignty laws of another nation — when it comes to matters of jurisdiction.
This is precisely why, when ROC citizens come running back to Taiwan after committing crimes in China, they are tried in Taiwanese courts, and China has not requested that they be sent back, in line with the terms of the agreement. There has also been a case in which ROC citizens were involved in a crime committed in China and were then tried in a court in Taiwan and received the death penalty.
Even in a case as serious as this, Chinese authorities did not request that the perpetrators be returned: Quite evidently, then, China respects the agreement in principle. This being the case, when jurisdictional issues arise between the two parties, China should proceed in line with what both sides have agreed to do and, according to the nationality principle, see to it that ROC citizens are returned to Taiwan.
Third, there is another principle at play here: the territorial principle, in which sovereign states can prosecute criminal offenses committed within its borders.
China should not seek to adopt this principle over the nationality principle, starting from the Kenya case in response to domestic pressure over the fact that so many Chinese fell victim to this particular scam.
If this precedent is set, should any Taiwanese subsequently return to Taiwan after committing crimes in China, China would be required to submit a request for those people to be sent to China for prosecution, and vice versa.
The problem is that if either side is going to send its citizens to the other party for criminal prosecution and punishment, judicial reviews would almost certainly be requested, as the extradition might well violate the extradited person’s right to access to a fair trial and due process by law.
Each party’s judicial authorities would be obliged to audit its counterpart’s judicial process, to make sure that it is fair and just. The procedures are already in place for this to happen in cases in which the citizen of one nation is sent for trial to the other for prosecution.
The case of Zain Dean is an example of Taiwan’s judicial system being reviewed by the Edinburgh court.
Given the present, still rather shaky, foundations of mutual trust between China and Taiwan, anything that risks stirring up tensions would best be avoided.
It is only natural that both parties would be looking out for its national interests in bilateral negotiations. Nevertheless, even if China does not take Taiwan into consideration, it should at least think about its own interests.
The way the Kenya incident was handled was quite at odds with China’s stance up until this point, and indeed with the shared interests of China and Taiwan going forward. For this reason, China should return the ROC nationals involved in the Kenya case.
Henry Tsai is Shilin District Court judge.
Translated by Paul Cooper
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