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 Whistleblowers Need Protection



Hon. David Kilgour, J.D.
Taiwan-Canada Association
Public Library
February 28, 2009

The past three decades have seen Taiwan emerge as a beacon of hope for rule-of-law and democratic development in much of Asia and beyond. Turning to recent developments, many Taiwanese and friends of Taiwan abroad are saying that there has been a dramatic deterioration in the rule-of-law, human dignity and democratic practices in recent months. This phenomenon can be divided into two parts:

1. The disproportionate police response during the visit of China's envoy Chen Yun-lin, which led to many citizens, including a number of your legislators, being hospitalized with a broken arm, concussions and other injuries. We also wonder why police prevented people from waving the national flag (and in many cases even confiscating them), while people wearing T-shirts with "I love Taiwan" were told to remove the T-shirts. What happened to the principle of freedom of expression?

In particular I should like to refer to the "Wild Strawberry" student movement, which started on November 6th in response to excessive use of force by the police, resulting in large numbers of civilian injuries. The group also protested the severe infringement on freedoms of speech during the events surrounding Chen Yun-lin's visit. The students continue to demand quite reasonably a revision of the Parade and Assembly Law.

2.         Many are also concerned about the arrests and "preventive detention" of former members of the DPP government. This led twenty-two international scholars and writers to issue an open statement on November 4th, which can be accessed at

The drafters of the statement did receive a response from Taiwan's current Minister of Justice, Wang Ching-feng, which was published in the Taipei Times at:

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, "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.

5.The letter states that it is untrue that Taiwan's judicial system is susceptible to political manipulation. If this is the case, how can it be explained that in the past weeks, only DPP officials have been detained and given inhumane treatment such as handcuffing and lengthy questioning, while obvious cases of corruption by members of the KMT including in the Legislative Yuan -- are left untouched by the prosecutors or at best stalled in the judicial process?

We may also refer to expressions of concern by Prof. Jerome Cohen and by lawyer Nigel Li, who expressed his deep concerns about the preventive detentions in an editorial in the China Times on November 9th 2008. In his editorial, Mr. Li praised the remarks made by prosecutor Chen Rui-ren, who was part of the legal team prosecuting the special fund cases, that the prosecutors' offices should "avoid the appearance of targeting only one particular political group."

The fact that the Special Investigation Task Force was set up under the DPP Administration or that the prosecutor general was nominated by President Chen is not at issue here. The problem is that the present system is being used in a very partial fashion.

We may add that the fact that you yourself have publicly discussed the content of the cases does create a serious imbalance in the playing field, and undermines the basic dictum that a person should be considered innocent until proven guilty in a court of law. Under the present circumstances it is hard to see how the persons involved including former President Chen Shui-bian can have a fair trial in Taiwan.

6.Lastly, the statement by the US State Department is interpreted in the letter as an "endorsement" of Taiwan's legal system and the procedures followed. It should be noted that in international diplomatic language, the term "we have every expectation" means "we are concerned and we will watch the situation closely." "For the past two decades, Taiwan has faced a difficult situation internationally. What has given Taiwan important credibility in democratic countries around the world has been its democratization. We fear that the current judicial procedures being used in Taiwan endanger this democratization, and endanger the goodwill that Taiwan has developed internationally."

"In conclusion: we do remain deeply disturbed by the erosion of justice in Taiwan, and express the sincere hope and expectation that your government will maintain fair and impartial judicial practices and quickly correct the present injustices. As an editorial in the November 20th issue of the London-based Economist indicated, Taiwan is "hungry for justice", and we also hope that your government will be willing to initiate judicial reform which would move Taiwan towards a fully fair and impartial judicial system which earns the respect and admiration from other democratic countries around the world. "

Respectfully yours, " 22 Signatories of the November 4th Joint Statement

As a friend of Taiwan and someone who was both a prosecutor and defense counsel in Canada before entering politics, I am also deeply concerned by the contents of the letter just quoted. I hope Justice Minister Wang will have substantive answers to the points raised by these 22 other friends of Taiwan. Hopefully she will also address the related serious points made in the joint statement issued on Nov. 21 by the Taiwan Bar Association, the Taipei Bar Association, and the Judicial Reform Foundation. He appears not yet to have provided substantive responses in the following:

Thank you.

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