Fri, Dec 08, 2017 - Page 8 News List

Widening the legal definition of ‘enemy’

By Christian Fan Jiang 范姜提昂

Some retired generals have been convicted of betraying their country by spying for China and developing a network in the armed forces on behalf of the Chinese People’s Liberation Army, yet they can continue collecting their pensions from the Taiwan government.

This alarming situation arises because of Article 34 of the Act of Military Service for Officers and Noncommissioned Officers of the Armed Forces (陸海空軍軍官士官服役條例), which stipulates four conditions under which retired officers lose their pensions: if they lose their citizenship; if they are convicted of subversion or treason, or of having committed acts of corruption on active duty; if they are sentenced to death or life imprisonment; if they die.

Only subversion, treason or corruption charges could lead to their pensions being canceled.

The Republic of China (ROC) Constitution defines Taiwan’s only enemy state, China, as “the mainland area,” not a foreign country. If China is not a foreign country, then logically it cannot be an enemy state, which prevents the most serious offense, treason, from being applied in cases involving China.

The courts hearing spy cases have therefore all applied the National Security Act (國家安全法), which imposes much lighter criminal penalties, which do not lead to the convicted officers’ pensions being canceled.

Luckily, the legislature’s Judiciary and Organic Laws and Statutes Committee has approved an amendment to the Criminal Code proposed by Democratic Progressive Party Legislator Wang Ding-yu (王定宇) that would make the offense of treason under the Criminal Code applicable to people who spy for China.

The articles on treason in the Criminal Code are worded in such a way that they only apply to cases involving foreign states, but Wang’s amendment would make them more widely applicable by modifying “foreign states” to “foreign states or enemies.”

“Enemy” is the key word in Wang’s proposal and it is based on Article 10 of the Criminal Code of the Armed Forces (陸海空軍刑法), which defines “enemy” as denoting any country or organization engaging in warfare or armed confrontation with the ROC.

This definition of “enemy” was added by an amendment made during former president Chen Shui-bian’s (陳水扁) terms in office.

The legislature’s Web site said three reasons were cited to justify passage of this amendment. First, the Criminal Code of the Armed Forces frequently used the word “enemy” as an element of criminal offenses, but without defining it precisely.

Second, “enemy” denotes any country or organization engaging in warfare or armed confrontation with the ROC.

Third, armed confrontation means that there is a country or political entity that is in a state of armed confrontation with this country, even though there is no actual armed conflict.

It is clear that Chen was aware of the difficulty of applying the offense of treason because “China is not a foreign country” and saw the need to establish a clear definition.

It should also be noted that this concept of “enemy” originates from Article 3, Section 3 of the US constitution, which says: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

The key word “enemy” in the US constitution is not restricted to foreign countries, it includes rebellious armies within the US.

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