Set Aside Cross-Strait Enmity, Give Priority to Law and Reason

(A Commentary)

C.V. Chen, Professor of Law

United Daily News (Taipei, Taiwan, ROC)

A Translation

February 8, 2011

Summary

The government of the Philippines has repatriated 14 Taiwanese fraud suspects to the Chinese Mainland. Our Ministry of Foreign Affairs immediately lodged a protest. The MAC is negotiating with its Mainland counterpart, in the hope that the suspects can be turned over to Taipei. Setting aside ideology and cross-Strait enmity and giving priority to the law and reason, is returning the 14 Taiwanese suspects to Taiwan an arrangement most consistent with jurisprudence?

Full Text below:

Taipei argues that the suspects are from Taiwan. It argues that the perpetrators' nationality should determine which government has jurisdiction. Beijing argues that the victims are Mainland Chinese. It argues that the victims' nationality should determine which government has jurisdiction. It argues that the effects of the crime were felt on Mainland China. Manila argues that the crime was committed in the Philippines. It argues that the host state should have priority. It would seem that every state has a ground for its claims, and that every state has reason on its side.

So which state should have priority? The author feels we must decide which of the three factors, the nationality of the suspect, the nationality of the victim, and the state in which the crime was committed, is the most relevant. Which government will see that justice is done? Which government will see that future crimes are deterred? The answer will determine which state should take charge.

The usual rule is that the state which has territorial jurisdiction, i.e., the state in which the crime occurred, should take charge. Therefore, the Philippines' claim that it should have priority because the crime occurred within its territorial jurisdiction, is valid. Mainland China's claim that it should have priority, is also legitimate. After all, the victims were Mainland Chinese. The repercussions of the crime were felt on Mainland China. Since the victims were on the Mainland, Beijing should find it easier to gather evidence. By contrast, Taipei's only connection with the case is that the suspects are Republic of China citizens.

Suppose the Philippines had not extradited the suspects to the Mainland, but instead to Taiwan? Suppose Beijing, having accepted the suspects, in turn extradited them to Taiwan? How would Taipei go about conducting a criminal investigation? The crime was committed in the Philippines. The repercussions of the crime were felt on the Chinese Mainland. How would we go about collecting evidence? Would we subpoena Mainland Chinese victims, and compel them to come to Taiwan to testify? As we all know, the courts on Taiwan are hardly the most effective venues in which to hear criminal cases.

The standards governing the admissibility of evidence on Taiwan are extremely high. If the suspects were repatriated to Taiwan, evidence gathering would not be easy. We might not be able to compel the victims to testify. The suspects might need to be released due to insufficient evidence. This would encourage ROC citizens to commit crimes overseas. Is this injustice really what the public on Taiwan wants?

We should look into our hearts. Suppose the victims had been from Taiwan? How would we feel then? The Philippines decision to repatriate ROC citizens to the Mainland may not have been entirely rooted in legal reasoning. Its diplomatic relations with the Mainland may have been a factor. The reality is we are at a diplomatic disadvantage. But this is exactly why we must appeal to the rule of law and the rule of reason. Otherwise, when reality and even law and reason work against us, how can we assert our rights? How can we defend Taiwan? Or, more accurately, how can we defend fairness and justice?

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