Jerome A. Cohen. Human Rights Issues of Chen Yunlin’s Visit. SCMP (South China Morning Post)

November 13, 2008

Last week’s historic visit to Taiwan by China’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 proper government response to public protests in a free society. Others involved fair investigation of former and present government leaders suspected of corruption.

The right to protest
Chinese have recognized 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 cooperation.

After police in Tainan several weeks ago failed to prevent an assault against Chen Yunlin’s deputy, President Ma Ying-Jeou’s government was obligated to do better on Chen’s visit. Although police could not protect Chen from being trapped in a hotel for eight hours by a huge mob of protesters, they did manage to defend him against bodily harm throughout a stressful week.

In doing so, however, they went beyond the limits of a free society, forbidding peaceful protesters from displaying Taiwan and Tibetan flags, confiscating flags from many demonstrators, closing a store that played Taiwan language songs and seeking to minimize 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 Chen’s visit.

President 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 kinds of undemocratic police practices that recently occurred and order training designed to enhance police compliance with the law.

It is encouraging to note that DPP chairwoman Tsai Ing-Wen, who led the massive opposition demonstration, has subsequently called not only for government review of police misconduct but also for reexamination by her own party of its failures to maintain order among its demonstrators. The DPP, if it is to fulfill its essential role as democratic opposition, must not degenerate into an army of street-fighters.

Fair prosecutions
Some Taiwan and foreign critics took the occasion of 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 KMT leaders is being ignored. They also claim that: most DPP suspects have been held incommunicado without an opportunity for a court examination of the justification for their detentions; and that the prosecutors’ offices have been leaking to the media detrimental information about the suspects 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 the critics’ claim of “selective prosecution” is well-founded. Recent arrests may simply reflect massive corruption by the party that dominated executive government for the past eight years, the DPP, 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. President Ma would do well to appoint a commission of impartial experts to review past and present public prosecutions and consider these issues and others.

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 defense, it ought to be invoked rarely. Certainly the Legislative Yuan, or the expert commission suggested above, should reexamine existing legislation in light of contemporary conditions to strike a new balance between the threat of corruption to democratic government and the threat of incommunicado detention to civil liberty. Perhaps the legislative standards for detention should be tightened as well as the judicial procedures for reviewing the prosecutors’ application of the standards. The challenge to liberty is sufficiently important to warrant even a request for constitutional interpretation by Taiwan’s impressive Council of Grand Justices.

The charge of biased prosecution leaks to the press seems to be the most straight-forward of the critics’ complaints. Such leaks, which occur unfortunately in many countries, do appear to have taken place and cannot be allowed in a democratic system. President Ma should adopt stringent measures to end them while taking account of the need for fair and transparent procedures for informing the media about prosecutorial actions. This topic should also be added to the agenda of a commission of experts.

An edited version of this article appeared in the South China Morning Post on November 13, 2008, under the title, “Ties that blind.”

Professor Jerome A. Cohen is co-director of NYU’s U.S.-Asia Law Institute and Adjunct Senior Fellow at the Council on Foreign Relations in New York.