Improving cross-strait legal affairs

By Su Yiu-chen 蘇友辰  / 

Wed, Jul 11, 2012 - Page 8

Beijing has been slow to sign further agreements under the cross-strait Economic Cooperation Framework Agreement (ECFA). One sticking point is whether, when Taiwanese in China are detained in connection with criminal cases, their families should be notified within 24 hours. Another is the question of whether business disputes between Taiwanese businesspeople and the Chinese authorities should be handed over to a third party for arbitration. Because both of these are sensitive issues involving sovereignty and the treatment of Taiwanese, both sides are sticking to their respective positions. However, unless Taiwan backs down, this could block any further progress on the ECFA.

Xinhua news agency recently reported that on June 18, Taiwanese businessman Bruce Chung(鍾鼎邦) was charged with collecting classified documents, an act that deemed to constitute a threat to national and public security, and had been ordered to remain in his residence under surveillance.

According to the report, Chung’s relatives in China have been notified and arrangements are being made for him to meet with them. It would appear from the report that he is being treated reasonably well.

However, another report was published on the same day concerning the case of three Taiwanese, Chen Tien-lu (陳天祿), Hsu Fu-tai (許福泰) and Wang Chen-tsung (王鎮宗), who were sentenced to death by a court in Zhangzhou in China’s Fujian Province, on charges of drug smuggling. After their appeal was rejected and the Supreme People’s Court in Beijing upheld their sentences, the death sentence was carried out on June 25.

The first case has attracted a lot of attention in Taiwan because Chung is a Falun Gong practitioner. The latter case involved serious felonies punishable by death. It took only one year and three months from the time the three were caught for three courts to impose and confirm the death penalty and for the penalty to be carried out. That is much faster than the trial process in Taiwan.

China recently amended its Criminal Procedure Law to strengthen the rights of the accused. However, the Taiwanese authorities currently only find out after the fact whether the basic litigation rights of Taiwanese involved in criminal cases have been protected in accordance with the law, or whether they have been wrongfully accused or coerced into making confessions.

In this situation, any arrangements Taiwanese officials make or assistance they could perhaps provide is often too late to be of any practical help.

There are few existing semi-official cross-strait arrangements that are systematic and based on the principle of reciprocity. The ECFA and related agreements is one, another is the Agreement on Jointly Cracking Down on Crime and Mutual Legal Assistance Across the Strait.

This agreement marked a breakthrough in the sovereignty impasse that exists between Taiwan and China, because it focuses on issues of jurisdiction instead.

The agreement covers matters such as combating crime, the endorsement and execution of civil-law judgements and arbitration decisions, repatriation of criminal suspects and convicts, the handing over of evidence and delivery of judicial documents. It also deals with these matters based on mutual non-denial of sovereignty and mutual recognition by the two governing authorities of one another’s actions.

However, although the agreement is praiseworthy for the efforts it makes to promote peaceful cross-strait development, its provisions regarding humanitarian family visits are too conservative and restrictive.

There is also the issue of whether lawyers appointed by the Taiwanese side are allowed to assist detained suspects and imprisoned convicts in China by visiting them to make sure they are being treated in accordance with basic standards.

These issues could be included under the category of reciprocal judicial assistance and covered by new provisions that are more legally binding.

There is also the issue of whether disputes between investors and the government can be passed on to a third party for arbitration. In this area, Taipei should consider making strategic concessions and adjustments, for example by allowing arbitration in Hong Kong or Macau.

Taiwan should actively seek opportunities to restart negotiations on judicial assistance to provide more options and ensure reciprocal assistance works better.

To this end, Taiwan’s Chinese Association for Human Rights is arranging exchanges with its counterpart, the China Society for Human Rights Studies.

The aforementioned issues of human rights and business disputes are scheduled to be major focal points for discussion between the two associations.

The Taiwanese side will also seek to visit prisons in the Beijing municipality to find out more about how Taiwanese are treated after being detained or convicted and imprisoned. We intend to establish channels of communication and try and ensure that detainees and prisoners are treated more in line with the safeguards and standards laid out in international human-rights conventions.

Su Yiu-chen is chairman of the Chinese Association for Human Rights.

Translated by Drew Cameron