SOUTH CHINA MORNING POST THURSDAY, NOVEMBER 13, 2008
Improved cross-strait relations appear to have come at a
cost to some civil liberties in Taiwan, writes Jerome Cohen
Ties that blind
L
ast week’s historic visit to
Taiwan by Beijing’s cross-
strait chief, Chen Yunlin
, which culminated
in four useful agreements,
focused attention on issues
of human rights as well as
politics. Some issues
concerned the proper
government response to
public protests in a free society. Others
involved fair investigation of former and
present government leaders suspected of
corruption.
Chinese have recognised the
importance of protecting foreign envoys
for almost 3,000 years. The feudal states
that contended for power before
establishment of the Qin dynasty
reciprocally assured the personal safety of
their emissaries. Such protection has
continued to be indispensable to inter-
state co-operation.
After police in Tainan failed to prevent
an assault on Mr Chen’s deputy, president
Ma Ying-jeou’s government was obligated
to do better during Mr Chen’s visit.
Although police could not prevent Mr
Chen from being trapped in a hotel for
eight hours by a huge mob of protesters,
they did defend him against bodily harm
throughout a stressful week.
In doing so, they went beyond the limits
of a free society, forbidding peaceful
protesters from displaying Taiwanese and
Tibetan flags, confiscating flags from
demonstrators, closing a store that played
Taiwanese songs and seeking to minimise
the visitors’ awareness of the protests.
There were also incidents of police
brutality, albeit sometimes in response to
violent provocations by demonstrators.
The police misconduct even outraged
many local supporters of Mr Chen’s visit.
Mr Ma, in addition to implementing his
campaign pledge to sponsor revision of the
Assembly and Parade Law to eliminate
protesters’ need for advance official
permission, should recommend
amendments prohibiting the kind of
undemocratic police practices that
recently occurred and order training
designed to enhance police compliance
with the law. It is encouraging to note that
Democratic Progressive Party chairwoman
Tsai Ing-wen, who led the massive
opposition demonstration, has
subsequently called not only for a
government review of police misconduct
but also for a re-examination by her own
party of its failures to maintain order
among its demonstrators. The DPP, if it is
to fulfil its essential role as democratic
opposition, must not degenerate into an
army of street fighters.
Some Taiwanese and foreign critics
took the occasion of Mr Chen’s visit to call
attention to another crucial feature of
democratic government – the fair
prosecution of current and former officials
suspected of corruption. The critics voiced
three serious complaints about recent
arrests and incommunicado detentions of
prominent DPP figures who have served as
government officials. They imply that the
DPP is being singled out for prosecutions
while corruption among Kuomintang
leaders is being ignored. They also claim
that: most DPP suspects have been held
incommunicado without a court
examination of the justification for their
detentions; and that prosecutors’ offices
have been leaking detrimental information
about the suspects to the media while
denying them knowledge of the leaks and a
chance to refute the “trial by press”.
These practices, it is said, bring into
question the political neutrality of the
judiciary, and the presumption of
innocence and other elements of due
process required for the fair and open trials
essential to democracy, raising the spectre
of the unjust procedures of “the dark days
of martial law” (1947-1987). It is not clear
whether critics’ claims of “selective
prosecution” are well founded. Recent
arrests may simply reflect massive
corruption by the DPP, which dominated
executive government for the past eight
years – corruption that allegedly reached as
high as former president Chen Shui-bian
and his family.
Oddly, although during the Chen
administration some prosecutions were
brought against both DPP and KMT
figures, some obvious KMT targets were
overlooked despite reportedly thick
dossiers compiled by Control Yuan
investigators. Mr Ma should appoint a
commission of impartial experts to review
such prosecutions.
It does not appear that any of the
recently detained DPP figures were denied
a court hearing or their right to counsel.
Moreover, there is a legislative basis for the
courts’ decisions to detain them
incommunicado for up to four months of
investigation if there is a reasonable basis
for believing that the suspects might
otherwise falsify evidence. Yet, in view of
the harshness of this pre-indictment
sanction and the obstacles it creates to
mounting an adequate defence, it ought to
be invoked rarely.
Certainly, the Legislative Yuan, or the
commission suggested here, should re-
examine legislation to strike a new balance
between the threat of corruption to a
democratic government and the threat of
incommunicado detention to civil liberty.
The charge of biased prosecution leaks
to the press seems to be the most
straightforward of the critics’ complaints.
Such leaks, which occur in many countries,
do appear to have taken place and cannot
be allowed in a democratic system.
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Jerome A. Cohen is co-director of NYU’s
US-Asia Law Institute and adjunct senior
fellow at the Council on Foreign Relations