One often hears people saying Taiwan is a nation governed by the rule of law. This is a little presumptive. Leaving aside the question of whether Taiwan is a nation, we need to decide what conditions are necessary for a country to say it is thus governed.
First, the laws must be faultless. If they are full of loopholes, so lenient that they fail to serve a prohibitive function or even so severe they are impossible to comply with, they will fall short.
The executive branch should also be competent in implementing and enforcing the law, including sufficient resources and qualified personnel. If these conditions are not met, it does not matter how good the laws are, they will ultimately be pointless.
Finally, should any contentions arise in the process of enforcing said laws, and recourse must be taken in the courts, then the judiciary’s independence, fairness and objectivity are of crucial importance.
The goal of the rule of law is to extend justice and protect the weak; should any one of the three elements be found wanting, then a nation cannot be said to be governed by rule of law.
We need perhaps to add another prerequisite here: Is the law properly executed? If the law is poorly enforced, or problems arise with the law itself, what then? A few examples might suffice, by way of explanation.
The National Security Bureau last year arrested Zhou Hongxu (周泓旭), a Chinese man who had studied in Taiwan, who was eventually sentenced to just one year and two months in prison for seeking to develop an organization with the intention of overthrowing the government.
Authorities later searched the properties of four witnesses, including New Party spokesman Wang Ping-chung (王炳忠), who were taken in for questioning, but later released without bail.
The bureau, unable to prosecute the defendants for espionage for China, was not able to protect national security. What role did the law play here?
Another example is the many cases of fatalities caused by drunk drivers. In the majority of cases, the offenders are recidivists. There are laws against drunk driving, but these are mostly token laws and do little to prevent drunk driving.
Then there is the Mining Act (礦業法) and laws related to environmental protection, which are essentially the same in the way they purport to be legislated, while being utterly ineffective.
Meanwhile, the biggest fine for banks that violate the law is NT$10 million (US$338,295), with senior executives essentially exempt from legal liability.
The tainted oil scandal several years ago only broke because of a farmer’s determination; the local government had repeatedly failed to respond to his complaints.
If laws are too lenient, they will neither serve a prohibitive function nor provide the victims or society with justice, and will actually encourage people to break the law with impunity.
Taiwan should perhaps follow the example of some European countries, which levy fines as a proportion of the offenders’ ability to pay: The more money they have, the higher the fine.
Should the offender cause physical harm, or endanger society or the state — such as attempting armed insurrection or causing serious environmental damage, these crimes should be met with heavy sentences without the option of parole.
Naturally, if Taiwan does not undergo sweeping judicial reform, then all of the above is mere talk. Taiwan clearly has a way to go before it can be considered to be a nation governed according to the rule of law.
Tsaur Tien-wang is a professor in Soochow University’s economics department. Lee Tsung-ying is an adjunct assistant professor in National Cheng Kung University economics department.
Translated by Paul Cooper
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