July 6, 2011
Although ECFA, the Economic Cooperation Framework Agreement between China and Taiwan, continues to preoccupy popular attention, this past month the two sides made impressive progress in carrying out their less-known Agreement on Joint Cross-Strait Crime-Fighting and Mutual Judicial Assistance. That Agreement between their specially-constructed “semi-official” organizations concluded its second year on June 25. Shortly before this anniversary, police from both sides of the strait, with the help of counterparts in Indonesia, Cambodia, Malaysia and Thailand, netted 598 fraud suspects from Taiwan, China and other countries in a remarkable, precedent-setting joint operation.
Chinese and Taiwan courts and prosecutors have also begun to speed up their implementation of the Agreement. On June 14, China’s Supreme People’s Court issued a regulation instructing lower courts on how to serve judicial documents, investigate evidence in cases involving cross-strait elements and improve relevant administration. Following the first visit of Taiwan’s Prosecutor General to China in early June, high-level prosecutors from both sides met in Taipei to discuss ways to improve practice under the Agreement, including mechanisms for remote interrogation of witnesses across the Strait.
This Agreement is one of fifteen signed by Taiwan’s Straits Exchange Foundation (SEF) and China’s Association for Relations Across the Taiwan Straits (ARATS) since the start in 2008 of President Ma Ying-jeou’s reconciliation policy. Like the others, this Agreement tactfully steers clear of politically sensitive language that might evoke conflicting sovereignty claims. For example, neither of the two governments involved, nor any government agency, is named. Legal terms such as “extradition” are avoided, since they might suggest a compact between separate states. The Agreement is much wider in scope than the 1990 “Kinmen Agreement” signed by the Taiwan and China Red Cross organizations. It covers not only return of criminal suspects and convicts but also exchange of information regarding criminal activity, assistance in arrests and criminal investigations, and judicial cooperation in civil, criminal and administrative matters.
The importance of this Agreement was demonstrated in the wake of the Taiwan-Philippines deportation row early this year. The Philippines, which recognizes the Mainland Chinese government as the only legitimate government of China, including Taiwan, had deported fourteen Taiwanese fraud suspects to the Mainland rather than to Taiwan. Following negotiations under the Agreement, however, the Chinese side promised to repatriate these suspects once its investigation is completed. Having learned a lesson from its vain attempt to directly repatriate its nationals from the Philippines, Taiwan has developed a new model under the Agreement, one that calls for cooperating with China’s law enforcers in countries where it lacks diplomatic relations. It quickly put the model to use in the recent joint operations against cross-border fraud rings in other Southeast Asian jurisdictions. This cooperation with Chinese counterparts enabled the island’s police to bring home over two hundred Taiwanese suspects.
There has also been progress in other aspects of cross-strait law enforcement. Early this year, Taiwan police and prosecutors, following leads from China’s police, arrested a Taiwanese who allegedly murdered his mistress in China. This is the first case under the Agreement of a Taiwanese being arrested in Taiwan for a crime committed in China. Moreover, this case marks the first time Taiwan prosecutors interrogated witnesses by video across the Strait.
Despite encouraging progress under the Agreement, some important issues remain unresolved. For example, China has long been a haven for Taiwan’s economic criminals. In the past it often refused to return them on the ground that their alleged misconduct did not constitute a crime in China. Taiwan had high hopes that the situation would be improved by the Agreement, which, in a case that is not recognized as criminal by one side, authorizes assistance if the case involves major social harm, and both sides agree to cooperate. Despite the flexibility provided for by the Agreement, the work of returning Taiwan’s major economic criminals has not been effective, according to Taiwan’s Mainland Affairs Office.
Taiwan government officials have also complained about poor coordination among Chinese counterparts. Taiwan has designated its Ministry of Justice as its sole agency in charge of cross-strait judicial cooperation. In China, by contrast, responsibility for such cooperation is divided among four agencies — the Supreme People’s Court, the Supreme People’s Procuracy, the Ministry of Justice and the Ministry of Public Security. Last year, Taiwan’s Deputy Minister of Justice claimed that “many of Taiwan’s requests are pushed around among the different departments for quite a long time and some eventually get rejected.” If China cannot designate a single agency to take charge on its side, it should create a joint mechanism to do so.
High Chinese officials have not yet voiced their criticisms of Taiwan’s implementation. To increase efficiency, however, experts on both sides of the Strait have proposed more direct communication between counterparts at each level of every government agency involved, with these partners holding periodic meetings to assess progress. The June 14 regulation of China’s Supreme People’s Court instructed provincial high courts to serve as second level channels for contact with Taiwan and cooperating under the Agreement. The Supreme People’s Procuracy, Ministry of Justice, and Ministry of Public Security, unfortunately, have not yet published any similar rules.
Even more challenging than coordination issues are cross-strait differences in standards and expectations for assuring human rights and fair procedures. Criminal justice is the weakest link in China’s legal system. Chinese law enforcement’s heavy reliance on confession and the prevalence of torture to obtain it have long resisted law reform measures. Taiwan will soon be confronted with questions such as whether evidence collected by its Chinese partner is legitimate and credible and how to protect the rights of its own people ensnared in China’s judicial system. This major subject warrants detailed cross-strait discussions, as some human rights critics have suggested.
These issues and others will make this Agreement an essential focus of cross-strait relations. It deserves public attention.
This article was published with some editing on July 6, 2011 in the South China Morning Post under the title, “Partners On Crime”[PDF]. It was published in Chinese in Taiwan’s China Times on July 7, 2011. ( 繁体中文）（简体中文）
Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at New York University School of Law and adjunct senior fellow for Asia at the Council on Foreign Relations. Yu-Jie Chen is a Taiwan lawyer and research fellow at the US-Asia Law Institute. See also www.usali.org.