For many years, the cross-strait situation has allowed fugitives to remain in China. But following protracted negotiations, Taiwan and China have finally signed an agreement to cooperate on crime-fighting and judicial matters. Much of the public will welcome the development in the belief that suspects wanted for serious crimes — economic and otherwise — will be repatriated to face trial if authorities ask for the help of their Chinese counterparts.
This would improve crime fighting efforts, but certain undemocratic aspects of the deal deserve scrutiny.
Article 4, clause 3 stipulates that in cases where one side considers a person a criminal suspect and the other does not, but that involve considerable “harm” to society, the two sides should deal with the matter on a case-by-case basis based on mutual consent. It may be that this regulation was included to cover all eventualities and that it leaves room for interpretation. Although well-meant, such a broad clause could have serious consequences.
Taiwan is a refuge for many Chinese democracy campaigners who reject authoritarian rule.
In China, these people cried out for democracy and rule of law, challenging the Chinese Communist Party and thereby committing “crimes” in the eyes of Beijing.
There are also many Taiwanese who advocate independence. From China’s perspective, they are “splittists” and are considered criminals.
Taiwan is also home to Falun Gong practitioners whose calls for religious freedom are anathema to Beijing. China considers their criticism a source of social unrest and they could therefore fall within the definition of activities that harm society.
Our government may think these worries unfounded, but the weaker signatory to an agreement is more vulnerable to political pressure. Making the content of agreements as precise as possible could help avoid controversy later on. Otherwise, when a dispute arises, the stronger party will try to dodge its responsibilities, while the weaker party will be pressured into honoring the terms of the clause.
Taiwan is becoming increasingly dependent on China economically. In a position of weakness, it may one day find it hard to refuse objectionable extradition requests from Beijing.
If China demands people be repatriated, will our government be able to refuse?
For Taiwanese, activities that Beijing sees as a threat — such as exercising freedom of speech and religion — are part and parcel of democracy. Would our government turn its back on these fundamental values?
Another cause for concern is Article 24, which states that the agreement will take effect once each side has completed the necessary preparations, no more than 60 days after the deal was signed.
It is true that not all international agreements need to be scrutinized by legislative bodies, and there are international examples of agreements taking effect without legislative review.
However, this applies without exception to non-controversial technical agreements where there is no major conflict of interest.
The crime-fighting agreement does not fit this description in either form or substance.
According to constitutional interpretation No. 329 of the Council of Grand Justices, if an agreement signed by government authorities “involves important issues of the nation or rights and duties of the people and its legality is sustained ... [it] should be sent to the Legislative Yuan for deliberation.”
This agreement has a bearing on the rights and duties of all citizens. It will have a strong impact on the nation’s democracy and basic values. How could the government agree to implement this deal within 60 days?
The agreement was formulated and signed without any public participation and the legislature was deprived of its right to scrutinize it. It is an assault on democratic values and the way it has been processed is unconstitutional.
Executive and legislative agencies as well as the public should not let this slip through without further debate.
Chiang Huang-chih is an associate professor in the College of Law at National Taiwan University.
TRANSLATED BY JULIAN CLEGG
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