Wed, Mar 09, 2011 page8

• Matter of extradition or deportation

  • By Huang Kuo-chang 黃國昌
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  The government has expressed its strong displeasure over an incident in which the Philippines handed over 14 Taiwanese to China, based on the “one China” principle. Despite Taiwan’s objections, Philippine President Benigno Aquino III insists that there is nothing to apologize for.

  The surprising thing is that some people from legal circles in Taiwan think the fact that China and the Philippines have signed an extradition treaty means that the dispute over this incident is purely a matter of international jurisdiction and has nothing to do with sovereignty.

  Some of them also seem to think that the Chinese criminal justice system’s scant regard for human rights is nothing to worry about. Based on these two viewpoints, these commentators insist that there is nothing improper about the Philippines’ handling of the affair.

  The Treaty on Extradition between the Republic of the Philippines and the People’s Republic of China was signed in 2001 and came into effect in 2006.

  Article 7 of the treaty reads: “If the request [for extradition] relates to an accused person, it shall also be accompanied by a copy of the warrant of arrest issued by a judge or other competent authority of the requesting Party.”

  So if China requests that the Philippines extradite a suspect in accordance with the treaty and provides the documents required by Article 7, and Philippine authorities determine that the extradition request complies with the terms of the treaty and that the documents provided are authentic, then the Philippines does indeed have to carry out its obligations to China under the treaty.

  In the recent incident, however, the key question is whether the 14 Taiwanese were indeed extradited to China in accordance with the procedure laid out in the Philippines-China extradition treaty. Were Philippine authorities really just carrying out their obligations under the treaty when they decided to send the 14 Taiwanese citizens to China?

  The truth is that when the Philippines put the 14 Taiwanese on board a direct charter flight to Beijing on Feb. 2, disregarding a writ of habeas corpus issued by the Philippines Court of Appeals, the procedure used was not one of extradition, but a simple deportation — and the two procedures are quite different.

  An extradition is carried out in accordance with an extradition treaty, whereby a criminal suspect fitting the conditions of the treaty is transferred to the country requesting extradition in response to an extradition request made by that country.

  If, on the other hand, the procedure employed by the Philippines is one of deportation, which is a unilateral act, then it is just a matter of expelling that person from the Philippines.

  In theory, the deportee, following deportation, may proceed to any country willing to allow him or her to enter, and the customary practice is to transfer the deportee to his or her country of citizenship or usual residence.

  In the present case, China told the Philippines that the 14 suspects were Chinese and should therefore be transferred to China. Those are the grounds on which the Philippines “returned” the 14 people to China, on the basis of the “one China” principle. So in fact the suspects were not extradited to China.

  That is how the 14 Taiwanese came to be “returned” to China. Unless someone is willing to accept the same “one China” principle that the Philippines recognizes, how can anyone claim that the incident has nothing to do with sovereignty?

  Another, still more important aspect is highlighted by the fact that when the 14 Taiwanese disembarked from the airplane in Beijing, they were made to wear black hoods, just like prisoners of war.

  When photographs of this became available, people in the Philippines who care about human rights and understand the issues involved started criticizing their government for its decision to transfer these people to Beijing.

  They have expressed doubts about the fairness of China’s judicial system, and are especially concerned that the 14 people may not have access to the safeguards of proper legal procedure. These people are now calling on the Chinese government to ensure that the ensuing judicial procedure is fair and just.

  Some opinion makers in the Philippines, faced with a situation in which their own government’s unreasonable actions may have put the citizens of another country at the mercy of an unfair judicial system, view the issue as a matter of safeguarding judicial rights, and are calling for a thorough review of the events.

  In contrast, some commentators in Taiwan have chosen to ignore the true nature of the affair and forget about human rights safeguards.

  Sad to say, the opinions put forward by these Taiwanese commentators can hardly be distinguished from those of the Chinese government.

  Huang Kuo-chang is a research professor at Academia Sinica’s Institutum Iurisprudentiae and chairman of the Taipei Society.

  TRANSLATED BY JULIAN CLEGG
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