New Zealand Law Society - Will Taiwan improve access to justice?

Will Taiwan improve access to justice?

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With a campaign slogan of “Light Up Taiwan” and promised reform across the board, you might think the newly elected liberal government would be among those enlightened nations implementing progressive drug laws and other legal reforms. Is it Taiwan’s time to be in the spotlight or to hide from it?

New Zealand should keep an eye on Taiwan’s development of criminal justice policy and practice. This is one benchmark that can tell us a lot about what actually is going on at the grassroots and inform us about their society as a whole.

Taiwan and what is happening to their internal economy and society is important. We are very much a significant trading partner (our 12th largest)1 and arguably have deeper historical cultural ties.2 Perhaps most importantly Taiwan needs friends – and we can be the friends they need to support their time of change for the better.

Taiwan is an island nation the size of The Netherlands with a population the same as Australia.

It is an educated, vibrant, democratic pro-Western country with the second highest population density in the world. Yet it’s not recognised by any major power in the world.3

Bucking the trend

On the face of it, Taiwan is bucking the trend for repressive governments, ignorant policies and declining human rights standards – an exception to the rule.

Taiwan has taken steps towards supporting many progressive human rights causes (including same sex marriage). National elections on 16 January saw the authoritarian Chinese Nationalist Party Kuomintang (KMT) swept away by the liberal opposition party, the Democratic Progressive Party (DPP) led by Dr Tsai Ing-wen.

The KMT, with its origins in drugs, corruption and repression, holds the dubious title of being responsible for one of the world’s longest dictatorship. Its past actions in Taiwan, where it killed tens of thousands of Taiwanese, tortured and imprisoned thousands more and established a Stasi-like system with Robben Island type prisons, affects the nation’s psyche today.

The human rights legacy the KMT has left is shocking. With the 20 May inauguration looming, Dr Tsai Ing-wen and her party have a lot of work in front of them.

Taiwan’s “systems” are a mess – whether it is food safety, aviation safety, nuclear safety, buildings standards, health and safety or any number of other areas of life.

The emerging generations who proudly identify themselves as Taiwanese want change. They want their country to meet international standards in all respects – especially so in foundational criminal justice reform and fundamental human rights initiatives (consistent with international law). They want recognition – and they deserve it. Their nation is bigger, more productive, more democratic and a better friend to New Zealand than many others.

Judicial reform

One of the “big ticket” items for reform is Taiwan’s judiciary – the centrepiece to a functioning and just criminal justice system. It has long been accepted that it is not “fit for purpose” and fails to meet international standards. Few trust it.4

Some might even label it fit only for serving a tin pot dictator and his “people’s courts”. Improvements have been made over the years. Yet even recently, stories of its incompetence and corruption are legend as its judges and prosecutors are arrested.5

To give a sense of the depth and breadth of the problems to be faced, these examples highlight issues:

  • a prosecutor was convicted of hiring a hit man to kill the local abbot in order to “take over the temple’s property and its lucrative funeral service business”; and
  • one ongoing 1995 murder case resulted in eight retrials following appeals, seven death sentences being overturned and two sentences of life imprisonment imposed.

Strange situations exist in Taiwanese law such as:

  • married women require the consent of their husbands to get abortions;
  • adultery is a crime;
  • an overwhelming majority supports capital punishment yet almost no-one trusts the judiciary;
  • you can go to jail for simply writing a negative restaurant review;
  • a prosecutor can act as the interpreter;
  • translations can take up to eight months to obtain, and trials can go on for decades; and
  • defendants are unable to have prosecution witnesses appear in court or even be cross-examined by their defence lawyer at any stage (to be fair this is typical in third world jurisdictions in which I often work).

Yet Taiwan has fully ratified and incorporated into its domestic law such international fair trial treaties as the International Covenant on Civil and Political Rights (ICCPR).

Taiwan wants to join the Trans Pacific Partnership, Interpol and virtually any other international force or security agency that will give it credibility and gravitas on the international stage.

It can do that by a complete overhaul of its criminal justice system and show the world how it is done – starting with judicial reform where some of the existing courts’ decisions can only be described as barbaric. Judicial reform is but one of the major planks of reform Dr Tsai Ing-wen was elected on and has spoken often about.

Prison reform

Taiwan’s prisons also have been promised reform as they fail to meet international standards. Taiwan’s Justice Minister Luo Ying-xue in 2013 stated that Taiwan’s prison capacity (prisons are severely overcrowded) was “unqualified in the light of International Human Rights Standards”. Occasionally, frustrations boil over and deadly standoffs occur.

Drug reform too is on the reform list, but recent actions have raised alarm bells as to what direction such reform is going. “Of the top 10 causes of death in Taiwan, year after year, alcohol and tobacco – two legal drugs – played a role. Together, they knock into a cocked hat any other possible cause of death.”

However, cannabis, (currently a class 2 drug in Taiwan) is something you can easily receive 5-10 years for smoking it with your friends for, or for growing a couple of plants. Strange indeed when the KMT built their enormous wealth partly on drug money, or that archaeologists tell us that Taiwan is the original home for human use of marijuana.6

These harsh sentences for minor offences and crimes filling up the prisons with the nation’s youth have all been criticised by visiting international legal committees over the years yet their lists of recommendations7 are simply ignored.

Capital punishment, a hot topic of global jurisprudence, is a subject the DPP will likely “reform” to the extent that they will place a de facto moratorium on it, as they did when they were last in power 2006-9.

Since 2010, under a KMT government, there have been 26 individuals executed.

Of course there are the usual cases of those executed who had been tortured by the police and later found to be innocent. Similarly, like other despotic regimes, the KMT government has used the death penalty as a “political tool” and “to gain points by quelling public anger” when it suits them.8

The future

Now that Dr Tsai Ing-wen and the DPP have won the election, what are they doing?

It is accepted that the unfair trials that fail to meet international standards, in league with backward, failing, discriminatory drug laws, combined to create a perfect storm located over a criminal justice “train-wreck”. This was partly why the opposition got elected, and by a landslide.

The reins of power will be handed over on 20 May. It seems the DPP is keeping its “powder dry” and preparing.

A couple of steps have been made. One was to appoint a new Minister of Justice with a reformist history, and the other was concerning. The latter involves a Bill that was supported by 17 DPP MPs proposing to further criminalise drug use. This proposal from a supposedly liberal reforming incoming government has made many supporters of the “new Taiwan” think again. Perhaps just more root and branch of the same poisonous tree?

Taiwan, under the incoming new government, has a chance to shine on the world stage. Shine for democracy, shine for exemplary rule of law standards, shine for compliance with international obligations and sensible integrated domestic law solutions and the opportunity to “glow” with decency and human rights standards which could be the envy of the world.

It will be fascinating to watch Taiwan in the coming months. They deserve the support of New Zealand and of the international community. Let us hope that Dr Tsai Ing-wen and her DPP can indeed “Light up Taiwan” and put a spotlight on the brave island nation.

A Tauranga barrister, Craig Tuck has a passion for international criminal law, and undertakes a wide variety of pro bono work in international human rights cases and advocacy. For further comment from Mr Tuck, contact Asia Pacific Lawyers Network public affairs manager Mandy Wyer, +61 418 270 656.

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