The trial of Taiwanese human rights advocate Lee Ming-che (李明哲) on Monday last week in China marked many firsts in judicial relations between the two nations across the Taiwan Strait. Notably, the court used Sina Weibo to broadcast the courtroom proceedings, allowing Taiwanese, including those in the law profession, to see the Chinese judicial system in action for the first time.
Accompanying Lee’s wife, Lee Ching-yu (李凈瑜), to observe the trial at the Intermediate People’s Court in Yueyang, Hunan Province, I saw how confident China is about “upholding the rule of law” and “teaching Taiwanese how to comply with mainland laws of their own accord.”
It helped me appreciate the worries and difficulties faced by Taiwanese when they are abroad for business or other reasons, and I had the strong feeling that judicial issues have been added to military, diplomatic and economic issues as major factors that affect stability and development across the Strait.
After Taiwan and China signed the Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement in 2009, the two sides’ judiciaries began officially cooperating and established regular working practices.
However, after President Tsai Ing-wen (蔡英文) took office last year, the Chinese unilaterally suspended most of this contact. The biggest impact has been that safeguards for the personal security of Taiwanese who are detained, held in custody or imprisoned in China have been put on hold.
Consequently, the bureaucracy of organizing family visits, appointing a lawyer, getting parole or medical leave, getting prisoners transferred to Taiwan or making similar arrangements have been pushed back underground so that cross-strait brokers, whose business had slowed, have become active again.
Lee Ming-che went missing on March 19 after entering Zhuhai, Guangdong Province, from Macau. After he disappeared, Lee Ching-yu turned down offers of assistance from cross-strait brokers, but instead appealed to the international community.
Taking this approach convinced China to allow her to attend the trial and also led to Straits Exchange Foundation officials being able to enter China for the first time since Tsai took office.
China even allowed Taiwanese lawyers and a group of legal consultants to accompany Lee Ching-yu — something that it has never allowed before.
Her steadfast refusal to settle the matter privately might have led people to worry about what would happen to her husband, but it forced the governments on both sides of the Strait to confront the deadlock regarding the Judicial Mutual Assistance Agreement.
In court, Lee Ming-che read a scripted statement: “Mainland China’s legal system and methods of enforcement are very different. This has given me a new understanding of mainland China.”
Probably everyone in Taiwan who was watching this scene has also come to see China’s judicial system in a new light, prompting us to cherish even more the judicial independence and rule of law that it took so much for Taiwan to attain.
This is not the first time that Taiwan’s judicial system has faced external challenges. For example, in the cases of fugitives Andrew Wang (汪傳浦) and Zane Dean, Swiss and Scottish law courts refused to extradite the accused to Taiwan on the grounds that Taiwan has retained the death penalty and prison conditions here are poor.
Both of these cases prompted the Taiwanese government to institute reforms. Faced with China trying Lee on charges of “inciting subversion of state power,” how should the government respond?
First, the government must consider China’s position that, because cases related to national security do not come within the scope of the Judicial Mutual Assistance Agreement, China was not obliged to notify Taiwan when Lee was arrested.
This highlights a loophole in the existing agreement. The Taiwanese government should seek an arrangement whereby China notifies Taiwan whenever it detains or arrests Taiwanese.
Until such time as the agreement is amended, the government should widely publicize the special rules that exist under Chinese law so that Taiwanese are aware of them and take proper precautions.
Second, almost all the criminal activities for which China indicted Lee took place in Taiwan over the Internet — activities that are legal in Taiwan.
Article 8 of the China’s Criminal Code states that the code does not apply to cases in which foreigners commit crimes against China while they are outside China and that such crimes are not punishable under the laws of the jurisdictions where they are committed.
The Taiwanese government should push for Taiwanese to have the same right. Otherwise, there will continue to be cases of Taiwanese who are unfamiliar with Chinese laws and who accidentally break them.
Finally, precisely because the Chinese government has shut down channels of communication, the Taiwanese government should be all the more proactive about monitoring cases in which Taiwanese have been detained or arrested in China.
The government must acquire as much information as possible about such cases and actively provide legal assistance, as has been done in Lee Ming-che’s case. This would deprive cross-strait brokers of the conditions they need to profit from such incidents.
Taiwanese should also stand united in refusing to be arm-twisted into settling problems privately, but instead insist that cases be handled through formal judicial procedures. That is the only way to get sufficient leverage for renewed negotiations to win real safeguards for the legal rights of Taiwanese in China.
Hsiao I-min is the director of the Judicial Reform Foundation’s judicial complaint center.
Translated by Julian Clegg
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