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Human Rights in Taiwan and China Today (2): Speech by Hon. David Kilgour

Posted by Author on December 16, 2008

Paper prepared by Hon. David Kilgour, J.D. for An International Forum on the 60th Anniversary of the Universal Declaration of Human Rights, Garden Villa Hotel, Kaohsiung City, Taiwan, 11 December, 2008 – (Cont’d)

Recently, the drafters of the statement received a response from Taiwan’s current Minister of Justice, Wang Ching-feng, which was published in the Taipei Times at:
http://www.taipeitimes.com/News/editorials/archives/2008/11/25/2003429508.
Their response to the minister’s explanation is so important to the rule of law in any democratic country that I venture to quote it in its entirety. It reads:

November 28th 2008 letter to the Honourable Wang Ching-feng, Minister of Justice, Taipei, Taiwan

“In an open letter to the Taipei Times, published on November 25th 2008, you responded to our joint statement regarding the erosion of justice in Taiwan.  We appreciate your acknowledgement of the sincerity of our concerns, and are grateful to receive a prompt and serious reply.  Based on the information available to us, however, we remain concerned about choices made by prosecutors in applying existing legal authority and strongly believe in the need for reform. Please allow us to highlight a number of specific points:

1. The procedure of ‘preventive detention’. This procedure is obviously intended for serious criminal cases in which the suspect is likely to flee the country.  In his November 13th article in the South China Morning Post, Professor Jerome Cohen states that “it ought to be invoked rarely.”   Yet, during the past weeks, it has been used across the board, and it has been used only against present and former members of the DPP government.  This casts severe doubts on the impartiality of the judicial system.  We also wish to point out that the people involved were detained under deplorable circumstances, and that they were not even allowed to see relatives.

2. The open letter contains the argument that when they were detained, the present and former DPP government officials “were all informed of the charges that had been brought against them.”   This is simply not correct: when they were detained, they were subject to lengthy interrogations – in some cases for up to 20 hours – which bore the character of a “fishing expedition”, and do not represent a formal indictment in any legal sense.  In most cases the prosecutors had had months of time to collect information: if they did have sufficient evidence of wrong-doing, they should formally have charged the persons and let them have their day in a scrupulously impartial court of law. That would be the desirable procedure under the rule of law in a democratic society.

3.The open letter also states that the persons involved had “the right and ability to communicate with their attorneys to seek legal assistance.”  It neglects to mention that in all cases where people were detained, the discussions with the lawyers were recorded and videotaped, while a guard took notes.  This information was then immediately transmitted to the respective prosecutors.  We don’t need to point out that this is a grave infringement on international norms regarding the lawyer-client privilege, and makes mounting an adequate defense problematic at best.

4.On the issue of leaks to the press, the letter states that under the Code of Criminal Procedure information on ongoing investigations can only be disclosed by spokespersons of the prosecutor’s offices and that unauthorized disclosure is subject to criminal prosecution.  The fact of the matter is that during the past weeks, the media has been filled with information on the ongoing  investigations which could only have come from the prosecutors.  We may point out one example, but there are numerous others:  Only a few hours after former Foreign Minister Mark Chen was questioned on November 3rd, the Apple Daily (a local tabloid) ran an article that “the prosecutors are thinking of charging Dr. Chen in relation to the case.”

The issue of violation of the principle of secret investigation was also raised by Shih Lin District Court Judge Hung Ing-hua, who strongly criticized the present situation and procedures followed by your Ministry in an article in the Liberty Times on November 17th 2008.

We may also mention that we find it highly peculiar that no steps whatsoever have been taken against the various prosecutors who leaked information, while we just learned that the Ministry of Justice is now taking steps against Mr. Cheng Wen-long, the lawyer for former President Chen Shui-bian, who presumably “leaked” information to the press.  The Ministry sent a formal request to the Taipei District Prosecutor’s Office asking the office to investigate and prosecute, and also sent a formal request to Taiwan Lawyer’s Association and asked the association to review the case and see whether Cheng should have his license revoked.

It is our understanding that the statements Mr. Cheng made were in relation to former President Chen’s views on Taiwan’s situation and its future, and an expression of love for his wife, but did not have any bearing on the case against him.  We hope you realize that if the Ministry proceeds along these lines, this will be perceived as a direct confirmation of the strong political bias of the judicial system. (to be cont’d)

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– Original from http://david-kilgour.com/

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