Kenyan Case: Do Not Demagogue Sovereignty or Accuse Mainland without Just Cause

Kenyan Case: Do Not Demagogue Sovereignty or Accuse Mainland without Just Cause

China Times Editorial (Taipei, Taiwan, ROC)

A Translation

April 14, 2016

Executive Summary:

The Mainland will continue its pressure tests on the DPP up until May 20. Had the Kenyan case erupted when cross-Strait relations were better, communication would be much easier. But, in the manner we see that the DPP’s utterances criticized the other side with a hostile attitude of addressing the issue. This attitude is likely to set back cross-Strait relations following May 20. Issues abound between the two sides. Most of them are related to the rights and interests of people on Taiwan. Tsai Ing-wen must be more rational than ever, and face the situation with a macro-view.

Full Text Below:

Some 45 Taiwanese have been repatriated to Mainland China by the Kenyan government for telecommunications fraud. The event has caused an uproar. Both the ruling and opposition parties have condemned Kenya and Beijing, accusing them of failing to inform us in advance, thereby undermining our sovereignty. But the case involves matters of international criminal jurisdiction, cross-Strait agreements on mutual legal assistance in judicial matters, and international image of Taiwan in case of its alleged involvement in fraud rights. The matter must be dealt with rationally, and not swayed by personal feelings. The matter of sovereignty must not be exaggerated. It must not be deliberately politicized. Groundless accusations must not level against the Mainland. The two sides of the Strait must consult with each other, on the basis of mutual trust and mutual assistance. They must engage in consultations, following past precedents, and bring the matter to a satisfactory resolution.

Mainland China is cooperating with Kenya to combat crime. Together they have arrested members of a multinational telecommunications crime syndicate. Kenyan courts have determined that none of the crime victims are in Kenya. According to Kenyan criminal law, it had no case against the suspects. Mainland China requested repatriation of crime syndicate members to the Mainland for trial on the grounds that in the case victims were Mainland citizens. Kenya, which recognizes the Mainland and adheres to the "one China" principle, agreed to repatriation. Taiwanese members of the crime syndicate knew the penalties for fraud differed greatly between one side of the Strait and the other. Therefore they refus,ed repatriation to the Mainland and resisted violently. Kenyan police resorted to forcing, adding to public repatriation anger on Taiwan.

The Mainland should not requested repatriation of the criminals without prior notification to Taiwan. The Ma government lodged an immediate protest and ordered the MAC to remain in communication.  President-elect Tsai Ing-wen appealed to the Mainland via Facebook. She demanded that Beijing immediately consult with Taipei and release the detainees. The KMT and the DPP each held press conferences expressing concern. They demonstrated non-partisanship in the upholding of human rights and the dignity of our government.

But one cannot ignore the importance of the principle of international cooperation in mutual assistance in criminal justice. We must not level groundless accusations against Kenya and the Mainland. The law is the law. The Ministry of Justice has explained. The Mainland demanded that the suspect be prosecuted or tried on the Mainland. The request was in accordance with the rules of the principle of international cooperation in mutual assistance in criminal justice. Kenya repatriated the suspects to the Mainland, based on the principle of top priority in criminal jurisdiction by the country where the crime is committed. Kenya accepted that the Mainland requested China; hence it transferred the suspects to Mainland China. That is political reality. All Taiwan can do is ask the Mainland to handle it in accordance with pertinent cross-Strait agreements. Taiwan is in no position to level groundless accusations.

Taiwan's criminal code does not classify fraud committed overseas as a felony, or specific offence committed overseas. As a result, its criminal justice system lacks jurisdiction over the case. Even if the suspects were returned to Taiwan for prosecution and trial, lenient sentencing in the long past would leave the criminals nothing to fear. In 2011, the Philippines uncovered transnational fraud. The Philippines repatriated 14 Taiwanese to the Mainland. After Taiwan lodged strong protests, the Mainland invited prosecutors from Taiwan to travel to the Mainland and prosecute the case jointly. Later, the defendants and the case were eventually moved to Taiwan for investigation and prosecution. Lamentably, the suspects' were sentenced to brief imprisonment in lieu of which a fine could be paid. Others were acquitted, leaving the Mainland extremely dissatisfied.

Put ourselves in their shoes. The Taiwanese telephone fraud rings abused their visa-free treatment. Groups such as these are common in Southeast Asia, the Middle East and Africa. More recently, rings there originally based in Southeast Asia moved to African countries, where visas could be readily obtained. Using local Internet telephone, they have defrauded many people on the Mainland, inflicting serious losses. When arrested, they use legal loopholes in Taiwan's laws for such misdemeanors. They deliberately blow the incidents up, inflicting grave damage to Taiwan's international image.

Internet fraud should never have been treated so lightly in the first place. Telephone fraud on Taiwan has dropped, but it has risen 30% on the Mainland. The victims may be from the Mainland. But we should nevertheless cooperate in combating crime. We should amend the laws on telecommunications fraud, adding stiffer penalties. Taiwan must not become a haven for legal loopholes enabling criminals to commit fraud.

While we stress parity and dignity between the two sides, we must not allow a single case to derail cross-Strait relations. Mainland’s Taiwan Affairs Office Director Zhang Zhijun has already briefed MAC Chairman Hsia Li-yan. Pundits should not depict that this case has set back cross-Strait relations. The two sides have already spoken on the hotline. In accordance with the Cross-Strait Agreement on Cooperation in Joint Crime-fighting and in Mutual Legal Assistance," criminal justice personnel will travel to the Mainland to deal with the case along with the Mainland, and arrange family visits with the suspects. The Mainland has expressed its willingness to assist detainees. Our side must abide by this agreement, which both parties had signed.

The interrogation could extend beyond the May 20 power-handover. The incoming new government, while having aired solemn representations to the Mainland, demanding the release of suspects, much also, at the same time, examining relationship of mutual trust of the two sides? The Mainland is waiting for President-elect Tsai Ing-wen to express good will on the 1992 Consensus, and the premise that "both sides of the Strait are part of one China." Tsai Ing-wen, alas, has yet to offer a satisfactory answer. The Mainland has taken steps apropos. It has cut the number of Mainland tourists allowed onto Taiwan. It has established diplomatic relations with the Gambia. It has made clear that Taiwan must apply to the AIIB in the same manner as Hong Kong. Clearly, cross-Strait interaction requires goodwill as its foundation.

The Mainland will continue its pressure tests on the DPP up until May 20. Had the Kenyan case erupted when cross-Strait relations were better, communication would be much easier. But, in the manner we see that the DPP’s utterances criticized the other side with a hostile attitude of addressing the issue. This attitude is likely to set back cross-Strait relations following May 20. Issues abound between the two sides. Most of them are related to the rights and interests of people on Taiwan. Tsai Ing-wen must be more rational than ever, and face the situation with a macro-view.

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