TDB Vol. 2 No. 7: Taiwan, U.S. Join Forces in Countering Disinformation

More and more, democracies are beginning to identify the means and objectives of authoritarian disinformation. Such cooperation is essential, as anti-democratic forces are learning from each other and continually improving their tactics. Alison Hsiao reports on a recent bilateral initiative between Taiwan and the U.S. 

 

Goethe once said, “The truth must be repeated again and again because error is constantly being preached round about us. And not only by isolated individuals but by the majority.” More than two centuries later, the admonition is more relevant than ever, and was quoted by Taiwan Foundation for Democracy Chairman and Legislative Speaker Su Jia-chyuan in his opening remarks at a workshop aiming to combat disinformation earlier this month.

Legislative Speaker and TFD Chairman Su Jia-chyuan gave opening remarks at 2018 GCTF opening ceremony.

The 2018 Global Cooperation Training Framework (GCTF) workshop on “Defending Democracy through Media Literacy” was co-hosted by the Taiwan Foundation for Democracy (TFD), the American Institute in Taiwan (AIT) and the Ministry of Foreign Affairs. GCTF was launched in 2015 to “institutionalize and serve as a platform for expanding one of the brightest areas of U.S.-Taiwan relations: cooperation on regional and global issues.” In 2018, cooperation between the two likeminded democracies turned to the wave of propaganda tactics that have buffeted the globe in recent years, a phenomenon only new in the sense that advances in technology have enabled hostile actors to spread content “farther and faster at less cost,” as U.S. Deputy Assistant Secretary Scott Busby said during the opening ceremony of the workshop in Taipei.

The U.S. is grappling with the spread of disinformation, and Taiwan is “also on the front lines,” AIT Director Brent Christensen said, adding that “we all have much to learn from Taiwan about how to marshal our academic, policy, and technical resources to confront external pressure.”

External Pressure

Taiwan has indeed long been subjected to constant and ferocious espionage attacks and hacks from China, and the use of disinformation, a phenomenon that goes back centuries, has been aided by the recent technological leap in the mobile industry and social networking. For Beijing, spreading disinformation also has strategic benefits when coupled with the measures it has been tabling to lure Taiwanese youth and professionals. Discrediting the Tsai Ing-wen administration and Taiwan’s democratic institutions would make incorporation in a system with Chinese characteristics, and possible future unification, less alarming to the Taiwanese — so Beijing’s theory goes.

Digital Minister Audrey Tang

Asked during her keynote speech at the opening ceremony about the channels China uses to spread disinformation in Taiwanese society, Taiwanese Digital Minister Audrey Tang responded, “Many.”

“If there is any channel that you can think of, that’s probably used for that purpose,” as any channel that can spread information is a channel via which disinformation can also be spread, she said.

It is true that “ not all IP addresses [of those found spreading disinformation] traced back to a [Chinese] region are necessarily linked to the [Chinese] government,” Tang said. The addresses “can also be linked to the [Chinese Communist] party or to the military,” she quipped, evoking snickers and laughters from the audience with a tacit understanding of the indivisibility of party, military, and government in China.

Tang added that we can nevertheless “make what we know public and rely on an international collaboration framework and independent and investigative journalists to piece together the puzzle.”

Taiwan as a testing ground

The importance of multilateral collaboration and independent media was shown in a recent issue published by local media outlet Mirror Media. The report shows that Taiwanese national security and intelligence agencies, during exchanges of information with Taiwan’s allies, obtained a copy of a strategic report detailing how the People’s Liberation Army (PLA) Strategic Support Force — established in December 2015 as part of the PLA’s major reform to be in charge of cyber, electronic, information and space operations — has been emulating Russia’s activities in its annexation of Crimea and interference in the 2016 U.S. elections. Beijing’s aim is to support a pro-Beijing administration in Taiwan in 2020, using next month’s local elections around Taiwan as a “trial run.”

The report reveals that the strategic intentions of the external forces targeting Taiwan by using new media is to amplify the effects of disinformation in public opinion, delegitimize the current government, and hollow the trust between the government and the people, between the administration and the military, and people’s mutual trust. The ultimate aim, the strategic report reportedly says, is “to utterly alter Taiwanese people’s ‘misrecognition’ of and dependence on the Western electoral system and debilitate Taiwan militarily, politically, and psychologically.”

Besides those traced back to China, IP addresses behind comments about specific electoral candidates on PTT, Taiwan’s largest online bulletin board, have been found to originate in Russia, Venezuela, Japan, Vietnam, South Korea and Indonesia (those are believed to be “bots”).

In 2017 there were 19 million Facebook users in Taiwan, out of a total population of 23.5 million people; LINE, a popular social media app, also reported it had 19 million users in 2018. Posts and messages carrying doctored or out-of-context photos accompanied by misleading stories or lies are difficult to debunk within closed/chat groups. Besides the rumor that cost the life of a Taiwanese a diplomat in Japan, the report offers “classic examples” of disinformation from China that was deliberately spread to stir up panic and discord in Taiwan. Among others, this includes “news” claiming that the Democratic Progressive Party-led Tsai government intended to exchange artifacts stored at the National Palace Museum with Japan for a 50-year exhibition and leasing Taiping Island (Itu Aba) in the contested South China Sea to the U.S. military. The sources were found to be Weibo (China’s Twitter-like platform), WeChat groups, as well as “content farms” funded by China.

 

A Weibo post claiming that Taiwan government is exchanging treasured artifacts with Japan for a 50-year exhibition was screengrabbed and, with text added, circulated in LINE closed groups. The National Palace Museum issued a statement denying the rumor and made a downloadable jpg-format of the statement, understandably, for easy spreading.

 

The most intimidating form of disinformation is not outright lies, but rather news-like posts that are partly true or based on bits of information from credible news stories. The disinformation about leasing Taiping Island to the U.S. was based on a Taiwanese government announcement that it would turn the island into a base for humanitarian aid and scientific research. Comments by a Chinese Ministry of National Defense spokesperson against the “leasing proposal” gave authenticity to the claim. Also based on a true event was the disinformation — coupled with an old photo of Taiwanese armored personnel carriers driving down a street — about a brigade of 8,000 U.S. marines allegedly arriving in Taiwan to be stationed at the newly built AIT compound in Neihu, Taipei. This bit of disinformation received much attention, in part due to the fact that news outlets were reporting at the same time that the U.S. normally dispatches Marines in uniform as guards at American embassies.

The photo of Taiwanese armored personnel carriers driving down a street was coupled with a story claiming 8,000 US marines were to station at the newly-built AIT compound in Neihu, Taipei for disinformation spreading. (Photo: Mirror Media)

 

Joint efforts

Taiwan’s foreign ministry is well aware of the danger. Also describing Taiwan as “on the front lines when it comes to coordinated attacks of disinformation,” Foreign Minister Joseph Wu said the ministry is no stranger to such attacks as it deals with them “on a daily basis.” “The topics of disinformation range from potential switches in diplomatic relations to issues with very real national security implications.”

“For every falsehood we discredit,” he said, “more come to take their place.”

Multilateral cooperation is therefore necessary to fight a malaise that is “prevalent across many government agencies in Taiwan and around the world,” Wu said. “On this issue [of disinformation], we seek to share information, contribute our strengths, and work more closely with our like-minded partners and countries from around the region.”

Governments need to join hands and so must civil societies. Cofacts, a collaborative fact-checking platform which combines “chatbots” and a hoax database developed by a Taiwanese tech community, has much to share in its experience in combating disinformation embedded in closed chat groups. Rumor&Truth and Mygopen are also website-based bottom-up effort to debunk rumors and “fake news.” There is room for non-government actors to form networks and learn from each other in a world where authoritarian governments evolve and learn from each other’s tactics.

TDB Vol. 2 No. 6: ‘Asymmetry’ and the Threat of Disinformation

Fake news have successfully penetrated democratic societies due in part to public complacency, the explosion of social media, and deficiencies in the media environment. New measures to counter disinformation spread by anti-democratic forces are being mooted by governments, but it will be a long time yet before the effects of this new assault on reality can be properly mitigated. Alison Hsiao discusses recent developments in Taiwan.

 

Most Taiwanese are familiar with the joke in which a Taiwanese celebrates the fact that he or she is free to comment on politics and to lambaste the Taiwanese president — and the Chinese replies, “I can lambaste the Taiwanese president, too!”

When the term “sharp power” was introduced, the authors of the report drew our attention to the idea that authoritarian regimes are “exploiting a glaring asymmetry” by “[raising] barriers to external political and cultural influence at home while simultaneously taking advantage of the openness of democratic systems abroad.” Authoritarian regimes may have problems selling their repressive system as an alternative to the liberal-democratic order, but by freely launching propaganda campaigns calling democracy “foreign” and “Western,” inefficient, and unable to deliver, they have won some adherents in democratic societies.

They have also been wily enough to criticize democratic institutions using democratic standards and are quick to dismiss democracy as “no better” than other systems of governance. The most recent case involves Beijing accusing the UK of “violating” a Chinese reporter’s freedom of speech when she was forced to leave a venue after she threw a tantrum during an event on the erosion of freedom and rule of law in Hong Kong after handover in 1997.

 

The cover photo of Biyun Temple’s Facebook page, showing the temple celebrating the 91th anniversary of the establishment of the PLA.

In Taiwan, we can see the five-star red flag waved in the capital and raised at a “shrine to the Chinese Communist Party” which the owner called “the united front patriotic education base.” The CCP mouthpiece Global Times reacted strongly to the demolition of the “base,” which was ruled an illegal construction in violation of the Mountain Slopes Conservation and Utilization Act (international coverage undoubtedly helped the local government summon up the political courage to tear it down and end a controversy that had begun in 2017). The hawkish party publication called on Taiwanese authorities to “provide legal space for the activities organized by the pro-unification groups, whose calls are in accordance with the PRC Constitution and do not violate Taiwan’s laws as long as they are not violent, and therefore should be treated equally as all other political forces without being subjected to political discrimination.”

Contrasting the self-righteous language with the fate of Taiwanese activist Lee Ming-che for holding discussions about history and democracy with people in China, or with the Chinese citizen who was detained for expressing the wish to celebrate the Republic of China’s National Holiday, the asymmetry is evident, and this has been fueled, in part, by our complaisance. All of this now calls for counteractions.

Rumors kill

The inroads made by disinformation — a phenomenon with a long history but whose detrimental effects have been amplified in a world connected by the Internet and social media platforms in particular — also epitomize the “glaring asymmetry” and how it is being exploited.

A Taiwanese diplomat deployed in Japan committed suicide earlier this year, allegedly due to the pressure he was under over how much assistance — unjustifiably little, some believed — Taiwanese nationals trapped at Kansai Airport during Typhoon Jebi received from Taiwan’s representative office (TECO) in Japan. The pressure snowballed after information appeared and gained attention on PTT, the country’s largest online bulletin board system. The post alleged that China had dispatched buses to the isolated Kansai Airport to extract its nationals, and that at least one Taiwanese national admitted to have taken the ride by agreeing to be a Chinese national, all allegedly because the Taiwanese government “had done nothing.”

The heated debate and finger-pointing soon escalated, with accusations that officials at Taiwan’s representative office had failed to do their job. Few netizens, however, questioned whether the source of the “news” should be examined for its authenticity before they plunged into the debate.

The diplomat is said to have complained about disinformation in his suicide note. It was later discovered that the buses which the Chinese embassy dispatched to pick up Chinese nationals were only sent after the trapped Chinese had been transported out of Kansai Airport by buses provided by airport authorities. In other words, Chinese nationals did not in any way get privileged treatment because of their embassy’s move in terms of how and when they left the airport. It was later found out that the initial post (Sept. 6) on PTT which claimed that China had made a laudable diplomatic effort in Japan came from an IP address located in Beijing.

When influence operations meet open societies

Ethan Tu, dubbed the father of PTT, came to PTT’s defense after the platform was accused of acting as “a source or abettor of fake news.” In his response, Tu underscored the fact that PTT is an open forum, and added that it was also PTT users who first expressed doubt about the “Chinese power” hype made by posts from Weibo, the Chinese Twitter-like platform. He also pointed out that it was Taiwanese online news outlets that amplified the controversy and that they never bothered to correct or update the reports after their authenticity had been called into question by PTT users.

Taiwanese news outlets compete for “clicks” and have a penchant for sensational content and headlines in order to attract readers, as the Japanese newspaper Yomiuri Shinbun has correctly pointed out. This can be exploited by the “Taiwan-targeting team” set up by the CCP Central Propaganda Department and the China Internet Information Center, according to the Japanese paper, which quoted a source saying that the team would be rewarded with bonuses if the disinformation it deliberately initiates receives coverage in Taiwanese media.

Another one of the team’s guiding principles is to spread rumors that concern people’s daily lives. These can be about anything from the plummeting price of bananas to President Tsai Ing-wen riding a fully armed armored personnel carrier and “refusing” to come down during an inspection at flood-devastated areas in southern Taiwan in August.

The media environment, along with the unexpected consequences of social media platforms — originally designed to encourage people interactions but more often than not giving rise to filter bubbles instead — have compounded the spread of malicious disinformation.

Much discussion has been devoted to the idea of amending existing laws to put the kibosh on the deliberate spreading of disinformation in the country, which in turn has given rise to misgivings about the possible abuse of new regulations. Legislation or not, there is a need to raise public awareness on how our open environment and political biases may be — and have been — exploited to the advantage of those who wish to destabilize Taiwanese society.

The establishment of the Taiwan FactCheck Center and the introduction of media literacy in Taiwan’s new K-12 curriculum are a good start, but the immediate effects will still be limited. For one thing, people who turn to the FactCheck Center probably already harbor healthy skepticism, but this does not help those who generally consume news uncritically. Also, media literacy does not only concern future adults but current ones as well, so more immediate solutions are necessary. The government must therefore bolster public trust through transparency in its operations, and by collaborating with civil society to keep the public aware by exposing and delegitimizing disinformation.

Feature image: From Flickr CC BY 2.0.

TDB Vol. 2 No. 5: TFD survey shows Taiwanese commitment to democracy and self-defense

TDB Vol. 2 No. 5: TFD survey shows Taiwanese commitment to democracy and self-defense

A survey released earlier this year shows strong opposition to unification and a firm commitment to defending the nation against external aggression. But an image problem with the armed forces has undermined recruitment efforts. Alison Hsiao analyzes the situation.

 

A new survey shows that young Taiwanese are committed to democratic values and defending Taiwan, findings that fly in the face of trends in democratic discontent in the West and a long-held belief that Taiwanese either expect the U.S. to fight for them or have no will to stand up to Chinese military aggression.

The survey, conducted by the Election Study Center at National Chengchi University, was commissioned by the Taiwan Foundation for Democracy (TFD). TFD has been studying attitudes on democracy and democratic governance among Taiwanese for years, which makes comparisons across time and between age cohorts possible.

This year, TFD took the initiative a step forward by gauging Taiwanese people’s leanings on cross-Strait relations and their willingness to defend Taiwan when encountering a military threat from authoritarian China, both of which have consequential implications for the persistence of Taiwan’s democratic institutions.

According to the TFD surveys across the years, Taiwanese have always shown strong support for democratic institutions, with more than 70 percent respondents agreeing with the statement that democracy is the best political system despite its apparent problems. Support was as high as 86.4 percent in 2016, the year of the first presidential election after the Sunflower Movement in 2014, which saw the nadir in democratic support, satisfaction, and optimism. (See Graph 1, 2, and 3)

 

Graph 1 support

 

Graph 2 satisfaction

 

Graph 3 optimism

The confidence in a democratic system borne by Taiwanese, especially Taiwanese youth, stands in stark contrast with their young counterparts in the U.S. and Europe, as shown in Foa and Mounk’s study (see Graph 4).

 

Graph 4 A Comparison with Foa and Mounk (2016)

 

Independence vs. unification: It’s more complicated than that

There is little doubt that Taiwanese youth’s support for their democratic way of life is a major factor in their support for maintaining the cross-Strait “status quo” of keeping Taiwan’s de facto independence. 65.5 percent of those under the age of 39 favor the “status quo” when given the option of “(de jure) independence,” which 23.5 percent of respondents in that age category are in favor of.

However, against the perception that the younger Taiwanese are the more likely they are to be “naturally (de jure) independence-leaning” (天然獨,tien-ran-du), the survey found that when it comes to favoring the “status quo,” the difference between those who belong to the 20 to 29 age group and those between 30 and 39 is not statistically significant. So is the difference between the two groups that favor de jure independence.

The (statistically ground and found) truth is that rather than being “naturally (de jure) independence-leaning,” the younger generation display clear (statistically significant) “anti-unification” sentiment, with only 7.5 percent in the 20-29 group choosing unification, compared to — with a statistically significant difference — 12.5 percent of their counterparts in the 30-39 age group and 20.1 percent for those above 40.

To further support this argument, another question set shows that while more than 50 percent of those under 39 (50.9 %) said they disagree with the idea that Taiwan should claim (de jure) independence, if such a claim would not result in a war, as many as 73.3 percent of the same age cohort said they also disagree that if China democratizes the two sides should unify.

The question set, factoring in pre-conditions, could classify the surveyed into four categories: Taiwanese nationalism, Chinese nationalism, pragmatism and “status quo” recognition, following Nai-teh Wu’s lead (2005). In the context of Wu’s classifications, statistically significantly more people in the 20-29 age group favor the “status quo” (44.3%) than in the 30-39 age cohort (35%). The younger age cohort is neither more attached to Taiwanese nationalism (32.5%) than those aged between 30 and 39 (33.8%).

Commitment

Some might label young Taiwanese’s (or Taiwanese in general) overwhelming preference for the “status quo” as lacking determination of any kind. But with the People’s Republic of China’s growing assertiveness and its intimidation of Taiwan militarily, politically and in everyday-life matters, added to Beijing’s contention that the Taiwan “problem” “cannot be postponed forever,” it can be argued that Taiwanese are not unaware of the fact that the “status quo” is de facto independence which cannot be tolerated by Beijing all the same.

68.1 percent of respondents in the survey said they would fight for Taiwan if China uses force to impose unification. The number is slightly lower but no less a majority (56.7 percent) if a formal declaration of de jure independence incurs a military attack by China.

How does this overwhelming willingness to defend Taiwan square with the low recruit rate for volunteer military service? One might ask.

Wu, currently an adjunct research fellow at Academia Sinica’s Institute of Sociology, pointed out at the press conference held by TFD on April 19 that the institute’s China Effect Team has also been following how China affects Taiwan’s politics, economy and society since 2012 and found the same trend of Taiwanese people’s willingness to defend Taiwan should China attack.

 

Dr. Nai-teh Wu presented the survey findings of the China Effect Team at TFD.

 

The team has also been following Taiwanese attitudes toward reinstating military conscription. To the surprise of many, the 2018 survey showed that as many as 86.7 percent of respondents agrees that the draft should be brought back, a new high compared with 86.3 percent in 2017, 83.4 percent in 2016 and 60.2 percent in 2015. These numbers suggest that low recruitment rates are not due to a lack of awareness of the need for self-defense among the Taiwanese.

Rather, what has been turning off young people to the military is arguably its negative image. Many young people who have done service in the armed forces mock the laxity of training, an impression that has caught on with the reduced period of mandatory service and thereby the diminished appearance of professionalism, which has been further exacerbated by the institution of the so-called Alternative Military Service (conscripts working in sundry government bodies or even private enterprises just to serve out their time). Compounding all this is the frequent stories of abuse in the closed environment, which erupted in August 2013 following the death of army corporal Hung Chung-chiu (which in turn catalyzed major military reforms).

Since her inauguration in May 2016, President Tsai Ing-wen has vowed to upgrade Taiwan’s defense capabilities and pledged to increase the defense budget every year. But not the least (if not the most) important part of her task has been turning around the military’s image. Her Facebook and Instagram posts often show her observing military exercises, dining with members of the armed forces and demonstrating great respect for fallen and injured servicemen. There are also efforts to revamp the military’s marketing campaigns, which are essential given the public does not have a high opinion of the profession, and necessary after the country shifted to an all-volunteer military this year.

 

Feature image credit: Presidential Office Official Website

TDB Vol. 2 No. 4: Taiwan Reforms its Referendum Laws — Opportunities and Challenges

TDB Vol. 2 No. 4: Taiwan Reforms its Referendum Laws — Opportunities and Challenges

Recent amendments to the Referendum Act and the Civil Servants Election and Recall Act have taken Taiwan one step closer to achieving direct democracy. Alison Hsiao explains the changes made to the former and shows why some issues remain off-limit.

 

Direct democracy has made strides in Taiwan in the past year, with significant changes made by recent amendments to the Referendum Act (公民投票法) and the Civil Servants Election and Recall Act (公職人員選舉罷免法). By this process, both acts saw the thresholds lowered and technical barriers removed or lessened, which has garnered applause but also created new challenges.

Referendum Act in a birdcage

The Legislative Yuan passed amendments to the Referendum Act on Dec. 12, 2017, unshackling the law from what some referred to as a “birdcage.” The birdcage was mainly due to the law’s “double one-half threshold,” whereby a national referendum could pass only if the number of voters who participated reached at least 50 percent of the electorate in the last presidential election (thereafter simply “electorate”), and at least 50 percent of those who voted did so in favor of the referendum question. Failure to reach either of those conditions would automatically mean that the people have vetoed the referendum question.

Critics had long argued that referendum questions and campaigns could be manipulated to secure the easy rejection of an argument, since failure to even reach the initial threshold — a 50 percent voter turnout — would mean that the proposal is rejected.

For example, a question could be phrased by those who did not want to stop the construction of a nuclear power plant as whether voters want to stop construction of the nuclear power plant (as opposed to whether they want to continue construction). As the 50-percent voter turnout can hardly be reached in a non-election vote in Taiwan, the referendum proposers could win their case by campaigning against casting the vote at all, or, if they did not want to be too brazen, by simply not campaigning.

Threshold to threshold

However, there were hurdles to cross before even getting to the double one-half threshold.

The group/person that proposed to hold a national referendum would need to demonstrate they have the support (in the form of signatures) of at least 0.5 percent of the electorate in the last presidential election (approximately 94,000) in order for that referendum proposal to be sent to the Referendum Review Commission for official appraisal. The Commission has the power to decide whether a proposal can stand. Prior to the amendment, the Act stipulated that the “matters subject to referendum shall be recognized by the Referendum Review Commission.” (The Commission has historically turned down several proposals amid disputes (1)(2).) Only after the Commission gave the green light could a referendum proposal proceed to the second stage of signature collection needed for a referendum to take place. The number of signatures for the second-stage signature drive had to reach 5 percent of the electorate (approximately 940,000).

Besides the sheer number of signatures involved which was said to contribute immensely to the technical barrier, the Referendum Review Commission was also at the center of controversy due to questions over its impartiality (the Commission members were nominated by the Executive Yuan) and its constitutionality (the Commission had substantive power to restrict people’s right to direct democracy).

‘A new page in Taiwan’s democratic development’

The amendments passed in mid-December scrapped the “double one-half threshold,” lowered the number of signatures required, and abolished the Referendum Review Commission (see Table 1 below).

According to the amended law, only 0.01 percent of the electorate’s (approximately 1,879) signatures are now needed for a proposal to be handed to the Central Election Commission, which is now the competent authority in charge of ensuring that matters to be put to a vote comply with the Act. The second-stage signature collecting now needs signatures by only 1.5 percent of that electorate (approximately 280,000) to initiate a referendum.

A referendum is passed when the number of those who voted yes to a referendum question is greater than that of those voted no, and when the former accounts for more than a quarter of the electorate (approximately 4.695 million).

Once a referendum has taken place, regardless of the result, the same referendum item cannot be put to a vote again within two years.

Other major changes include the lowering of the referendum voting age from 20 to 18; allowing the Executive Yuan (with the approval of the Legislative Yuan) to put its policy proposals to a national referendum; and directives that the Central Election Commission set up an electronic system to facilitate the process of signature collecting.

The People Rule Foundation, founded and led by former Democratic Progressive Party (DPP) chairman Lin I-hsiung, who has long advocated for amendments to the Referendum Act, called the changes “a new page in Taiwan’s democratic development” as “people rule” can now be further substantiated.

But Foundation chief executive officer Liu Ming-hsin said the amendments have only met “90 percent of the [foundation’s] expectation.” The “10 percent disappointment,” Liu said, was the exclusion of “territorial change” as a possible referendum item.

 

                                                                                                    Table 1

 

ROC territorial change

Despite the relaxed rules in the amended Referendum Act, the legislature voted to exclude constitutional amendments as items that can be put to a national referendum. Parties had had exchanged heated words on the matter since 2016, when proposals to amend the Act were first tabled.

The ruling Democratic Progressive Party (DPP) maintained that since there are already rules governing amendments to the Constitution in the Additional Articles of the Constitution of the Republic of China (中華民國憲法增修條文), there was no need to include them in the Referendum Act, with DPP Legislator Lee Chun-yi calling the Referendum Act merely a “procedural law.”

New Power Party (NPP) Legislator Huang Kuo-chang, however, pointed out that since the Additional Articles of the Constitution state that the alteration of the national territory should go through a referendum (Article 1), the Referendum Act as a procedural law should not exclude constitutional amendments as possible referendum items. The main opposition Kuomintang (KMT) stood with the DPP on excluding those.

The issue of changing the Republic of China (ROC) boundary has been the object of contention as it hits a raw nerve among many who fear that the territorial claims upheld by the ROC since 1947 — which encompass territory that is larger than what the People’s Republic of China rules and claims — or the ROC’s “inherent” territorial boundary as stated in the ROC Constitution, could be altered if this were put to a referendum. Conversely, by making the territorial boundary stipulated in the Constitution coterminous with that of what is under Taiwan’s current effective rule, which would include Taiwan, the Pescadores, Kinmen and Matsu, Taiwan’s de jure independence (without changing the name of the country) could, according to some, be achieved.

The NPP caucus had also demanded that cross-Strait political negotiations be put in the Act as a referendum item, requiring initiatives for cross-Strait political talks be put to a referendum before any negotiations between the two governments can take place. The NPP’s proposal did not receive majority approval in the legislature.

Application

The NPP and the Social Democratic Party (SDP) have each since proposed and collected the needed number of signatures to pass the first-stage threshold to call a referendum on overturning amendments to the Labor Standards Act, which was also passed recently on Jan. 10 amid controversy and protests.

See also: TDB Vol. 2. No. 2: Taiwan’s Tough Road to Labor Reform

Members of the opposition SDP set up booths to collect signatures to annul the latest amendments to the Labor Standards Act. (photo courtesy of the SDP official Facebook page)

One other group that has hitched the wagon to the new referendum law was the Happiness of the Next Generation Alliance, an anti-same-sex-marriage alliance, which has collected enough signatures and passed the first-stage signature threshold at the end of January for its proposal to define marriage as strictly the union between a man and a woman, this despite a groundbreaking Constitutional Interpretation in May 2017. On Jan. 31, the group announced it had successfully collected more than 3,000 signatures for a referendum proposal that aims to make revisions to gender equality education.

For both issues, there is no easy way through the CEC, which has now taken over the responsibility of reviewing proposals from the now-defunct Referendum Review Commission.

On Feb. 1 the CEC announced that the referendum proposals tabled by the NPP and the anti-gay-marriage group must first be referred to public hearings for clarification on the wording of the proposals before the CEC determines whether the proposals are valid. The NPP called on the CEC not to create technical barriers to stall their proposal, adding that there were no ambiguities or contradictions in its proposal. The Happiness of the Next Generation Alliance convener said they were not surprised about the CEC’s announcement, as the issues have generated much public debate.

The surge in proposals is the result of the expectation that the referendum(s) could be held alongside the nine-in-one local elections on Nov. 24 this year.

 

 

Feature image: From Flickr CC BY 2.0.

TDB Vol. 2. No. 3: Deportations of Taiwanese Suspects to China Violate Rights of Taiwanese

Several countries have deported Taiwanese fraud suspects to China in recent years, a new trend that undermines Taiwan’s sovereignty and raises issues as to the ability of the suspects to receive a fair trial. Olivia Yang looks at this development.

 

Philippine authorities on Jan. 13 arrested 133 Taiwanese and Chinese suspects in a crackdown on telecom scams. While it remains to be seen where the suspects will be deported, over 500 Taiwanese nationals worldwide have been deported to China since 2014, nearly 300 of them last year alone.

The deported Taiwanese have been suspected of working with telecom or cyber fraud rings in countries including Kenya, Malaysia, Cambodia, Armenia, Vietnam, and Spain.

The Spanish National Court last December made two decisions that granted Beijing’s request for 214 Taiwanese and Chinese fraud suspects to be deported to China.

“The international community, except for those countries with which (Taiwan) has diplomatic relations, consider Taiwan to be part of China and take the view that its independence cannot be achieved unilaterally,” reads the Madrid Court’s written ruling.

While the move was “welcomed” by the Chinese side, Taiwan’s Mainland Affairs Council (MAC) “expressed deep regret and dissatisfaction” over the decision.

“[T]he Republic of China (ROC) is a sovereign state. Mainland China must face the fact of the existence of the ROC,” reads a statement from the MAC. “The various tactics used by Beijing to pressure Taiwan in the international arena only increase the resentment of the Taiwan public and are absolutely unacceptable to the people of Taiwan.”

It has yet to be determined how many out of the over 200 suspects arrested in Spain are Taiwanese, said Taiwan’s Ministry of Foreign Affairs (MOFA), since officials have been unable to visit and identify them.

Beijing’s argument

Countries that have sent Taiwanese fraud suspects to China have cited Beijing’s “one China” — often confused with a country’s “one China” policy — in which Beijing maintains that Taiwan is an inalienable part of China. Beijing has also defended the deportations, saying that the victims of the crimes were Chinese citizens, a claim that has been backed by China’s diplomatic allies.

Another argument China uses is that Taiwanese suspects often receive lighter sentences, or none, when sent back to Taiwan.

Twenty suspects arrested in a Malaysian telephone scam case were deported back to Taiwan and then released due to lack of evidence in April 2016. However, after Latvia last year turned down Beijing’s request to send 110 Taiwanese suspects to China, 44 of them on Jan. 20 were charged with aggravated fraud by a Taiwan court.

China, on the other hand, on Dec. 21, 2017 convicted 44 Taiwanese of operating telephone scams from Kenya and Indonesia. Two were sentenced to 15 years in jail, while the remaining 42 received sentences of up to 14 years in jail and fined.

Taiwan’s MOFA has protested against Beijing’s actions and condemned them as violations of human rights, especially in cases like Armenia, where the government “neither released information concerning the case during the investigation nor disclosed the location of the ROC nationals.”

But the objections have had little effect, as overseas Taiwanese suspects are continuously deported to China.

Regarding the 2016 Kenya case, international human rights organization Amnesty International expressed concerns that Taiwanese suspects “face a real risk of human rights violations” when sent to China.

“If deported to China, they could face serious violations of their fair trial rights.There is no doubt Kenya cherishes its relationship with China, but by no means should it sacrifice these individuals’ rights for political expediency, the due process of the law must be respected,” said Victor Odero, Amnesty International’s East Africa Campaigner.

According to the Human Rights Watch 2017 World Report, Taiwanese suspects deported from Armenia, Cambodia, and Kenya, “were given no discernible opportunity to contest their deportations before a competent court in those countries.”

Corruption and politics meddling in China’s legal system

Academics and experts have over the years written extensively on corruption within the Chinese legal system and how politics control law in Beijing.

In a 2016 Foreign Policy article, Jerome A. Cohen, co-director of the U.S.-Asia Law Institute at New York University School of Law, wrote that even though Chinese President Xi Jinping has emphasized the government’s efforts to end corruption within China’s legal system, “in principle the party controls the legal system at every level.”

“Despite his emphasis on ‘rule of law,’ Xi wants local courts reliably to submit to the discipline of the central party and judicial officials. He doesn’t want local judges to be independent of the central government, but he does aim to stop the local influences that distort local judgments,” Cohen wrote.

China’s criminal justice system is also known to violate human rights by denying suspects’ access to family members or lawyers of their own choosing while awaiting trial. There have also been many cases in which the state prevented lawyers from meeting clients or accessing necessary court material.

In March 2017, Taiwanese human rights activist Lee Ming-che disappeared while traveling in China. Chinese authorities later that month confirmed they were detaining Lee on suspicion of “subverting state power.” Lee went on trial in September 2017 in the Yueyang Intermediate People’s Court for attempts to promote human rights and democratic values on social media and messaging platforms. He pleaded guilty and was sentenced five years in jail last November.

The Taiwanese activist was unable to contact his family since his detention. Lee’s lawyer was also appointed by the Chinese court.

On May 29, 2009, China and Taiwan signed a “Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement” which stipulates that each side should “provide facilitation for visits by family members in accordance with each Party’s own rules and regulations.”

After Lee’s verdict was handed down, Taiwan Presidential Office Spokesperson Alex Huang said the manner in which China handled Lee’s case had damaged cross-Strait relations and challenged Taiwanese people’s belief in freedom and democracy.

This development has also raised fears that China may eventually pressure governments worldwide to send to China Taiwanese nationals who are suspected of having committed other types of “crimes” as defined by Chinese law, such as encouraging “separatism.”

Taiwanese human rights activist Lee Ming-che.

 

Top photo: From Flickr CC BY-SA 2.0.

TDB Vol. 2. No. 2: Taiwan’s Tough Road to Labor Reform

After months of confrontation, withdrawal in protest from the New Power Party and opposition from the Chinese Nationalist Party in the legislature, amendments to the Labor Standards Act — the second round since May 2016 — were passed by the ruling Democratic Progressive Party-led Legislative Yuan on Jan. 10. Alison Hsiao explains what the new laws entail.

Reform agenda

Amendments to the Labor Standards Act have been the object of heated debate since President Tsai Ing-wen assumed office in May 2016. During her election campaign, Tsai had proposed “six major labor policies” — reducing total working hours, reversing the trend of low wages, supporting employment for all generations, legislating protections for individuals with atypical work, guaranteeing protections against overwork and occupational injuries, and shaping a fair employment relationship. Since her inauguration, people have closely monitored and tracked how well her administration has done to make good those promises.

With Taiwan’s economy faltering, the wealth gap widening, wages stagnating for nearly two decades and a work environment that had not changed for several years, the need for reform was evident and especially welcome among the younger generations.

Amid partisan disagreement, on Dec. 16 last year the Democratic Progressive Party (DPP)-led legislature passed amendments ensuring “one mandatory day off and one flexible rest day” every seven days (which labor rights groups protested were compromised by the reduction in the number of national holidays by seven). The new law also increased overtime pay for work on rest days and added annual leave days for younger employees with relatively few service years. (See Table 1 below)

On the anniversary of President Tsai’s inauguration, the Ministry of Labor conducted a “self-examination,” declaring that the administration has been making good progress in carrying out labor reform and calling the “one mandatory day off and one flexible holiday” measure “the most evident implementation of the administration’s pledge to lower working hours.”

Amendments to the amendments

The measures nevertheless met strong opposition from business leaders and those who claimed that the strict limitations set by the law deprived workers of the right to work more hours to earn overtime pay.

After Premier William Lai was sworn in, the Executive Yuan began mulling a response in September to the complaints concerning the “inflexibility” of the new rules by again amending the Labor Standards Act. On Nov. 9, it approved a series of proposed amendments that give more flexibility to various types of businesses.

The Legislative Yuan had since become a hotspot for protests outside and scuffles within. But still this did not stop the legislative committee from ramming through the review of the amendments on Dec. 4, sending them to the legislative floor for discussion and cross-caucus negotiations.

On Dec. 23, thousands of labor group and NGO members, activists and students took to the streets, raising placards which read “exhausted” and “end overworking” while accusing the ruling party of making an “about-face” and “betraying labor.” The protest occurred two days after the Cabinet called a press conference stressing that the revisions were made for exceptions, applicable only to industries or businesses that require flexibility and whose exemptions are approved by the government. Quoting a study conducted and published by the National Development Council (NDC) in cooperation with the Chung-hua Institution for Economic Research (CIER), in which both manufacturing and non-manufacturing industries have claimed that the “one mandatory day off and one flexible rest day” measure has negatively affected their operations and costs, Cabinet Spokesperson Hsu Kuo-yung underlined that the new amendments are to “both increase workers’ pay and facilitate a better operational environment for the businesses.”

The Dec. 23 march had been scheduled to end at 5pm, but a group of young protesters refused to disperse, and started a “night guerrilla tactic.” They hurtled around to be chased by the police and randomly stopped at crossroads to cause traffic congestion. The chase ended past midnight when police swarmed the Taipei Main Station East 3 Gate beleaguering the few remaining protesters, who in the end were, together with the lawyers who came to the protesters’ rescue, packed onto the police paddy wagon and “dumped” on the Taipei outskirts. The lawyers called a press conference in the small hours of Dec. 24 and accused police of infringing upon personal freedom and “grossly violating the law.”

An extraordinary legislative session was called for and began on Jan. 5 as the regular legislative session had ended on the last working day of 2017. The New Power Party (NPP) caucus, at the end of the first day of the extraordinary session, blocked the entrance by locking the doors of the legislative floor chamber with iron chains, while Chinese Nationalist Party (KMT) lawmakers, who reportedly also had planned to occupy the chamber, taking actions by stationing themselves outside the chamber with hundreds of amendment motions in an attempt to prevent DPP lawmakers from proposing the Labor Standards Act amendment bill. After the blockade ended 160 minutes later, the NPP legislators moved to the plaza in front of the Presidential Office and started a hunger strike.

Barbed-wire barricades and ad hoc restriction zone set by police around the Presidential Office since Jan. 5 have enraged activists. Some had taken the DPP to task for seemingly reneging on the stance it used to uphold on the Assembly and Parade Act, which was to relax the law and restrict its arbitrary use by the authorities.

On Jan. 8, civic and labor groups again protested outside the Legislative Yuan to pressure lawmakers, with some taking radical actions in hopes of raising further public attention. The NPP caucus, after being evicted from the front plaza of the Presidential Office in the early hours of the same morning, returned to the legislature but withdrew from the cross-caucus negotiations in protest.

Four Unchanged rules and Four Flexibilities’

On the afternoon of Jan. 9, the Legislative Yuan embarked on an 18-hour voting marathon. Legislators from the KMT staged a sit-in in the chamber, wearing headbands and spreading banners that read, “death of labor rights” and “shame of democracy,” while the NPP lawmakers walked out of the chamber all together and declared they would not to participate in any floor discussion and voting regarding the labor law.

The third reading of the amendments was completed on Jan. 10, giving flexibility for negotiations between unions and company management (between workers and management if no union exists) on matters regarding an overtime cap (the rule of 46 hours per month can be extended to 54 hours, although the three-month total of 138 hours remains unchanged), “one fixed day off and one rest day every seven days” (the rule stays but which day should be the fixed day off within the seven days can now be decided through union-management negotiations after government approval for some industries), and the hours of rest between shifts (11-hour-rest is the norm but exceptions could be made to reduce the rest hours to 8 and no less after union-management negotiations and with government approval). (See Table 1 below)

Also unchanged from the 2016 version of the amendments is the 40-hour workweek and overtime pay on rest days.

Infographic issued by the Ministry of Labor after the passage of the amendments. The ministry also released a statement refuting some of the Presidential Office’s Human Rights Consultative Committee members’ claims, published as an opinion piece in a major newspaper, which accused the latest labor law amendments of violating Article 7(d) of the International Covenant on Economic, Social and Cultural Rights. The ministry reiterated that the flexibilities allowed do not sanction overworking as there are conditions to be met and approved by the government. (Picture courtesy: Ministry of Labor)

According to the government, the amendments provide more flexibility with regards to overtime, work schedule arrangements, shift arrangements and annual leave usage.

After passage of the bill, Minister of Labor Lin Mei-chu said the rules are the rules, and that the “exceptions will definitely not become the rules.” Lin was responding to widespread fears that the “flexibility” given to certain industries under certain conditions could result in misuse and exploitation. “The intervals between workers’ rest are not to be reduced without government approval following applications for flexibility and exceptions,” Lin said, adding that the ministry would flesh out supporting measures and mechanisms for curbing violations before March 1, the day the amendments officially take effect.

 

Table 1 Labor Law Amendments

*Before the 2015 40-hour workweek amendment, many were already enjoying two-day weekends because the MOL had made an interpretation of the law in 1998 allowing employers and employees to reach an agreement on swapping “not working the 4 additional work hours every two weeks under the ‘84 hours for every two-week period’ model” for not having days off on the following seven holidays: January 2 (an extension of the New Year’s Day holiday), March 29 (Youth Day), September 28 (Teachers’ Day), October 25 (Taiwan Retrocession Day), October 31 (Chiang Kai-shek’s Birthday), November 12 (Sun Yat-sen’s Birthday), and December 25 (Constitution Day). But not all employers adopted the swapping measure.                                  **Government approval required                                                                                                                                                  *** When the compensatory/annual leaves are not used up, employers are still required to pay accordingly.

TDB Vol. 2 No. 1: BERSIH 2.0: More than Just Street Protests

TDB Vol. 2 No. 1: BERSIH 2.0: More than Just Street Protests

Maria Chin Abdullah, head of the recipient of the 2017 Asia Democracy and Human Rights Award, shares her views on democracy and the role of civic groups with Taiwanese NGOs. Olivia Yang reports.

 

“We are trying to define democracy in Malaysia, to say that it is all right for you to speak up, it’s all right to not fear them. Because once we show fear, we back down, we compromise.”

BERSIH 2.0 Chairperson Maria Chin Abdullah is speaking at a discussion with Taiwan NGOs in Taipei on Dec. 10, 2017. The Malaysia-based coalition had just been presented with the 2017 Asia Democracy and Human Rights Award earlier that day, and proceeded to share her experiences with Taiwan NGOS on how civil societies in Asia advocate for fair and clean elections.

While BERSIH 2.0 is well-known for its sea of bright yellow-clad protesters in the streets of major cities around the world, rallies are not the only approach the coalition takes in expanding civil political participation throughout Malaysia.

“At any time now we can confidently say we can bring 100,000 people to the streets, but it took us 10 years to build up this momentum,” says Maria Chin Abdullah. “The other thing we are saying to the government is that you have to respect rule of law. We are actually challenging them.”

To build more awareness among Malaysians on the importance of civil participation in public affairs, BERSIH 2.0 has come up with new strategies. These include organizing electoral observations, forming a Delineation Action and Research Team (DART), and holding boot camps that provide education on the basics of democracy, elections and mass mobilization.

But the coalition’s efforts have not all been carried out smoothly.

Maria Chin Abdullah says that “as we get more sophisticated in reaching out to people, the state also gets more sophisticated in trying to counter us.”

BERSIH 2.0 Chairperson Maria Chin Abdullah at the 2017 Asia Democracy and Human Rights Award Ceremony. (Photo: 黃謙賢 / TFD).

Pushback from the government is not unexpected; however BERSIH 2.0 is also seeing frustration from the civil society. Sometimes people want quick solutions to changing the government, which is very difficult due to the “uneven” system, says the BERSIH 2.0 chairperson.

“People think that just because they vote they should get the results they want. But it doesn’t work that way.”

While elections in Taiwan are comparatively clean and fair, challenges like vote-buying still exist.

Huang Shiow-duan is a standing board member at Transparency International Chinese Taipei (TICT) and chairperson of Citizen Congress Watch (CCW), a coalition of NGOs that monitors the Legislative Yuan, Taiwan’s Parliament.

During the conversation with BERSIH 2.0, Huang gave examples of how the organizations she is affiliated with are fighting corruption in the island-nation.

From 2013 to 2014, TICT collaborated with the Tainan District Prosecutors Office to produce a series of anti-corruption animated education videos. Huang says it is crucial to start anti-corruption education from a young age, and children can also be more persuasive in communicating information to older generations.

CCW, on the other hand, supervises Taiwan’s parliamentarians by broadcasting legislative sessions and making legislative documents accessible to the public. It also evaluates legislators once every six months and the evaluation report is made public so that civil society, along with legislators, are aware of their performance.

“I don’t think the government will clean itself. It needs supervision. That’s why we need to create a system of separation of power,” says Huang.

Compared to TICT and CCW, Watchout Co. is a younger NGO founded in 2013 with a mission of lowering the threshold of political participation. Being a media platform, Watchout empowers the people by sharing facts and informed opinions in a way that is easy to consume. It also utilizes social media and technology to oversee the government.

But echoing Maria Chin Abdullah, Yu Chih-hao, design and technology lead at Watchout, says that “empowering the people is the ultimate solution — but it’s the toughest solution.”

The main challenges Watchout faces is coming up with methods to free people’s time and minds, and getting other media outlets to distribute its information so the facts flow between different eco-chambers.

Yu nevertheless emphasizes the importance of democratic countries defining their own democracy and learning from each other.

“Practicing democracy in Taiwan is our lifeline,“ says Yu. “It’s one of the factors that differentiate Taiwan from China, and it’s one of the factors that get Taiwan international recognition and respect.”

“Democracy does not happen overnight. Democracy takes time,” says Maria Chin Abdullah. “We are struggling. We are backsliding. But I still believe in the power of the people.”

Top photo:  BERSIH 2.0 Chairperson Maria Chin Abdullah speaking at a discussion with Taiwan NGOs in Taipei on Dec. 10, 2017. (Photo: Olivia Yang).

 

TDB Vol. 1 No. 23: Ten Questions About Taiwan’s Transitional Justice

TDB Vol. 1 No. 23: Ten Questions About Taiwan’s Transitional Justice

There has been much discussion about the Act on Promoting Transitional Justice since it was passed in early December. The Taiwan Association for Truth and Reconciliation has come up with a Q&A to respond to the myths and controversies concerning the newly passed law and to help put transitional justice in its proper Taiwanese context.

 

1. Why does the transitional justice concerned in the Act only target the Kuomintang (KMT)? This is none other than political vendetta!

Transitional justice is to hold rulers and the state apparatus accountable for their violations of the basic rights of the people and their abuse of state institutions and power. The KMT was the sole ruling party during the Martial Law period and where decision-making and discussion of many policies took place. It is difficult to undertake the project of Taiwan’s transitional justice and rectify the wrongs committed during the Martial Law period without making the party the target.

Post-democratization governments certainly are not immune to taking illegitimate actions that are against the principles of justice, but people living in a democratic society are more aptly equipped with rights guaranteed by the Constitution and protected by mechanisms such as separation of power and checks and balances. When their rights are violated, they have access to both institutional and non-institutional ways to demand a response from the government (appeal, court, petition or social protest).

What “transitional justice” deals with is the political persecution committed before democratization.

2. Taiwan’s transitional justice is purely a political scheme against waishengren and to de-Sinicize Taiwan?

In fact, according to statistical information derived from the number of people receiving state compensation, the percentage of waishengren political victims in the White Terror cases was actually a lot greater than the percentage of ethnic groups in Taiwan’s total population. The case of Shandong exiled students is an example that involved a large number of waishengren. Clearing up the history helps solve certain myths surrounding the ethnic divisions and antagonism. Due to its idiosyncratic history, Taiwan’s democratic transformation was intertwined with a process of change in people’s national identity; the two thereby have often been conflated but should actually be looked into with extra caution.

The core of transitional justice, however, is about how a society faces its history, about making those denying historical traumas and mistakes understand that it would come at a cost. Transitional justice is a task with concrete goals to achieve.

3. Chiang Kai-shek had made contributions to the country as well. Why can’t his contributions be displayed alongside his misdeeds? If not for him, Taiwan would have been taken over by the People’s Republic of China long ago and very likely be overwhelmed by the storm of the Cultural Revolution.

As said in the answer to the first question, transitional justice is to hold rulers and the state apparatus accountable for their past violations, not to write biographies for historical figures. Those political parties and individuals who harbor special feelings for Chiang Kai-shek can continue their support for him.

Nonetheless, the rhetoric of “safeguarding Taiwan (against Chinese aggression)” cannot explain why Chiang perpetuated Martial Law rule even after his control over Taiwan (and offshore islands) was consolidated in the mid-1950s (after the Korean War) and why he targeted the communists, the tangwai/dangwai people and overseas Taiwanese independence activists as “three-in-one enemy” starting in the 1970s. “Protecting the island from falling under communist control” was a propaganda slogan for the ruler to rationalize his use of political repression and carrying out of comprehensive social surveillance during the Martial Law period.

4. The government has been compensating political victims since the 1990s. What else is to be done 30 years after Martial Law was lifted?

Bound by the National Security Act and Constitutional Interpretation No. 272, before the passage of the Act on Transitional Justice, the political victims, despite receiving compensation, were not cleared of their convictions and criminal records, seized properties were not returned, and the KMT archives during the years when the country was ruled by the party-state have not been made public. Even now, we still do not know exactly how many political victims there were during the White Terror. Why were they persecuted? Who should be held accountable? How extensive was the persecuting system? What, if any, have the persecutors done to redeem themselves? What was wrong with Martial Law and the constitutional institutions? The state has to face its own past deeds. Holding the repressive system accountable is much more than simply pointing fingers at Chiang Kai-shek and Chiang Ching-kuo; a lot more needs to be done.

▶︎ See also: TDB Vol. 1 No. 22: Taiwan Passes Act Promoting Transitional Justice

Discovered in the 1990s, the Liuzhangli graveyard in Taipei was the burial ground for hundreds of White Terror victims. The cemetery was designated a municipal cultural landmark in 2015 (Photo: TATR).

5. The amendments to the Labor Standards Act have been stalled and same-sex marriage legalization (seemingly) mothballed; is the ruling Democratic Progressive Party pushing for transitional justice just to divert public attention?

What we need to do is to work together for the realization of social justice of various kinds rather than elbowing each other out. The passage of the Act on Transitional Justice does not mean that transitional justice has been achieved. The Transitional Justice Promotion Committee has to be overseen and kept from descending into formalism. We need to take this historical opportunity and build a bridge between the past and the future in our era.

6. Granted, the task of transitional justice should be done, but don’t we need to have a sense of proportion by first working hard on improving the economy?

Most of the living political victims are aged. This is probably the only time period in which we live alongside these people. When else but now are we to rectify the past wrongs for them and grant them their historical status? There are things that cannot be bought with money: lost youth, freedom and lives. They could have had a different life, if only Taiwanese society had been free from the decades-long suppression and suffocation. It’s hard to weigh the possibilities they had once owned for their worth, let alone against money.

7. Those political victims were not all innocent. Some of them were underground Chinese Communist Party members who were supposed to be executed.

No one would object to redressing the wrongful charges against the innocent, but the greatest challenge of transitional justice precisely lies in questioning the legitimacy and legality of the laws that the “criminals” had broken during the Martial Law era. How did the state violate the people’s basic rights and deprive the people of their rights under the pretext of maintaining social stability and national security via court-martial and laws? How do we draw the boundary between national security and protection of personal rights? This is a question in need of serious debate even in a democratic society. We can choose to forget and pretend nothing of the sort happened, or we can choose to face the history. Those interested in the debate can find a related extensive discussion on the website of the third constitutional court simulation (in Chinese) that was held in November, 2016.

8. Why are Indigenous peoples and “comfort women” not included in the Act?

Those who support the redressing of historical wrongs are supposed to also be in support of the restoring of justice for Indigenous people and for “comfort women.” Taking other countries’ cases as examples, these two groups deserve separate legislative bills for delicate and thorough handling of their demands, rather than being squeezed with other groups into the same piece of cloth.

The persecution that Indigenous people have been subjected to span different regimes, which requires a more comprehensive examination and solution that goes to the root of the problems stemming from political institutions and existing laws. If not, the same kind of persecution would only reappear in different forms. The issue of “comfort women,” on the other hand, requires the government to negotiate with the Japanese government and demand compensation and an apology.

It is hard to imagine these different forms of violence that require different routes for restoring justice could be dealt with by the same set of rules. Only through different legal and institutional frameworks can these issues be allowed more room for detailed and practical solutions to these complicated problems.

9. The constitutionality of the Act on Transitional Justice is in question?

Whether a law is unconstitutional is up to the grand justices to decide. Insofar as it has not been ruled unconstitutional, a law passed by the legislature is nevertheless effective.

Questions have been raised as to whether the jurisdiction assigned to the Transitional Justice Promotion Committee oversteps the jurisdiction of the judiciary, such as Article 14 of the Act granting the Committee the right to investigate, and Article 15 and Article 16 allowing the Committee to seal documents and materials regarded as evidence and to require those under investigation to speak the truth. According to Constitutional Interpretation No. 613 concerning the operation of an independent agency, the constitutionality of the operation of an independent agency will be upheld “if important matters are determined by means of hearings, if the performance of the execution of its mission is made transparent and public for the purpose of public supervision,” and with the existing “authority of the Legislative Yuan to supervise the operation of the independent agency through legislation and budget review.” Article 19 prohibits damaging of political archives on pain of imprisonment; however, the one who initiates the investigation should still be the prosecutors, as how the offenses of destruction, abandonment, and damage of property are governed in the Criminal Code.

In general, the Committee will be operating in the same way as other independent agencies (e.g. the National Communications Commission and the Fair Trade Commission), exercising its jurisdiction independently, unaffected by the change of premier and having the power of administrative enforcement (one could refer to the Administrative Execution Act for an understanding of how the power is governed). However, the Committee should be as prudent and transparent as possible when exercising these powers, with the Committee making critical decisions by consensus.

10. What is transitional justice anyway? What should be done to achieve it?

Transitional justice” used to be a professional term developed by international academia to refer to how a society that has achieved democratic transition faces and deals with mass human rights violations committed in the past by the state. It has therefore also been termed as “dealing with past wrongs.” The main objective of transitional justice is “Never Again” and to make up for the past sufferings of our fellow countrymen and -women. The core objectives of transitional justice are: seeking the truth, compensating the victims, restoring justice, attaining social reconciliation and preventing the return of state violence.

How is transitional justice done then? The more commonly seen mechanisms include (1) trials and vetting (holding the persecuting system and persecutors accountable); (2) setting up a Truth Committee and sorting and making public the related archives (the state needs to recognize what mistakes it has done); (3) compensating the victims and their families and restoring their reputation; (4) rebuilding the memory (removing/remaking symbols of authoritarianism and cautioning future generations against the return of authoritarianism through museums, memorials and textbooks). Every country has its own distinct way of carrying out transitional justice under different historical/political contexts; there is no “correct way.”

This piece originally appeared in Chinese. Translation by Alison Hsiao

TDB Vol. 1 No. 22: Taiwan Passes Act Promoting Transitional Justice

TDB Vol. 1 No. 22: Taiwan Passes Act Promoting Transitional Justice

Nearly a year since a draft bill was introduced in the Legislative Yuan, the Act on Promoting Transitional Justice was passed on Dec. 5, marking an important step in the country’s effort to shed light on and redress past injustices committed during the Martial Law period. Alison Hsiao looks at the Act and its implications.

 

At 21:09 on Dec. 5, Legislative Speaker Su Jia-chyuan struck the gavel and announced the passage of the “Act on Promoting Transitional Justice” (促進轉型正義條例) on the legislative floor, signifying a new beginning for the country’s transitional justice.

Different versions of the bill had been proposed and heated debates on various issues — from the time span covered and the authority granted to the Transitional Justice Promotion Committee to the decision to make indigenous groups’ transitional justice a separate issue not included in the Act — were stoked in the year-long period since the draft bill was introduced in the legislature last year.

The Act that cleared the legislature on Dec. 5 put an end to the battle — temporarily, however, as the opposition Kuomintang (KMT) indicated right after the passage that it would petition for an interpretation of the Constitution on the grounds that some clauses of the Act are unconstitutional.

Covering the period from Aug. 15, 1945 to Nov. 6, 1992, when Martial Law was lifted on the offshore islands of Kinmen and Matsu (five years later than on Taiwan proper), the Act will see the setup of an independent, nine-people Transitional Justice Promotion Committee overseen by the Executive Yuan.

The Committee will be tasked with five main missions: opening up political archives, erasing symbols of authoritarianism and keeping the sites of past injustice, redressing judicial wrongs, restoring the historical truth and promoting social reconciliation, and settling and re-channeling ill-gotten party assets.

Beside the party assets settlement that has already been undertaken, the task that is expected to stir up future debate is the erasing of “symbols that are nostalgic or in memorial of the authoritarian ruler(s) in public buildings and spaces,” written in Article 5 of the Act. It has already been interpreted by some local media as a directive to conduct a house-cleaning removal of references to “Zhong-zheng” (Chiang Kai-shek’s given name) in the names of schools, places and streets. That claim has since been rebutted by Minister of the Interior Yeh Jiunn-rong, who said that it will be up to the Committee to decide.

The Act also stipulates that any institution, group or people evading, refusing or hindering investigations launched under the Act, and political parties and their affiliated organizations refusing to return political archives (determined as relevant by the Committee) to the state will be subject to repeatable penalties of NT$100,000 to NT$500,000 and NT$1 million to NT$5 million respectively. Those who have disposed of, destroyed, damaged or concealed political archives, or have attempted to do so, will be liable to punishment of no more than five years behind bars.

Transitional Justice with Taiwanese Characteristics’

The major breakthrough has been praised by the Taiwan Association of Truth and Reconciliation (TATR), a non-governmental group that has advocated for transitional justice since 2008 and which was directly involved in the legislative process leading to the Act. TATR has lauded the annulling of Article 9 (Paragraph 2) of the National Security Act — passed less than a month before the lifting of the Martial Law in 1987 in Taiwan proper — that prevented political victims convicted of criminal charges by a court martial during the authoritarian period from appealing in the post-martial-law time.

“The Act has made concrete advances on both rectifying past injustices and truth seeking, particularly the former,” the association said on Facebook. “This is a transitional justice model with Taiwanese characteristics.”

Article 6 of the new legislation now demands that the right to appeal for re-investigation be returned to those who “had been subjected to criminal sentencing — resulting in punishments, rehabilitative measures and confiscation of properties — that had violated the constitutional order of liberal democracy and the principle of fair trial during the authoritarian rule.” The cases should not be bound by Article 9 of the National Security Act, the article says, adding that redressing judicial wrongs can be achieved by “identifying the persecutors and holding them accountable, restoring and compensating for the damages to the victims or their families’ reputation and rights, and setting history right and making public the judicial wrongs.”

Two scenarios are considered in Article 6.

Those who have been compensated or had their rights re-instituted in accordance with the February 28 Incident Disposition and Compensation Act (1995) (二二八事件處理及賠償條例), the Compensation Act for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period (1998) (戒嚴時期不當叛亂暨匪諜審判案件補償條例) and the Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law (2000) (戒嚴時期人民受損權利回復條例), shall see the related convictions annulled and criminal records expunged, according to the Act, without the need to go through judicial proceedings.

Rendered criminal-record-free without the need to go to court, they can nevertheless still make use of the reinstated right to appeal, TATR President Yeh Hung-ling said. Such individuals can now appeal the convictions of offenses of sedition or treason under Martial Law in order to receive compensation or to secure the return of properties seized as accessory penalty (which was supplementary to the principal penalty of imprisonment or death). Such appeals were not possible before, as the Act Governing the Recovery of Damage of Individual Rights during the Period of Martial Law (Article 4) restricts the right to demand the return of or compensation for confiscated properties to those who are “found innocent.” This very article was literally empty because, when coupled with Article 9 of the National Security Act, no acquittal was possible without the right to appeal in court.

The second scenario involves those cases not covered by the three compensation acts. The new legislation demands they be redressed in the same way if approved by the Committee through a review launched upon the petition of the claimant or initiated by the Committee itself.

Those rare cases are the “controversial” ones, the association said. They include that of Voyue Tosku (杜孝生), a Tsou Aborigine who received a 17-year prison sentence in 1954 for “corruption,” and of Li Ma-dou (李媽兜), whose conviction of sedition/treason “survives the legal review under current laws and rules of evidence” — meaning that he did “by violence commit an overt act” with intent to destroy the state or use illegal means to overthrow the government according to the Criminal Code, and is thereby not compensable under the Compensation Act for Wrongful Trials on Charges of Sedition and Espionage during the Martial Law Period.

The claimants in the second scenario also have the right to appeal in court if their claims are rejected by the Committee, the Act states.

Milestone’

Putting an end to the applicability of Article 9 of the National Security Act is a “milestone” for Taiwan’s transitional justice since the lift of the Martial Law 30 years ago, the TATR said.

“We ask that the Democratic Progressive Party government exercise extra prudence when choosing the members of the Transitional Justice Promotion Committee, and attend to all the indispensable aspects of transitional justice — truth, justice, compensation for and rectification of wrongs, and reconciliation — with a holistic vision,” it added, stressing the need to pass the bill of political archives that has been waiting in the wings of the Legislative Yuan to further clear up the past.

President Tsai Ing-wen, on the next day of the legislative achievement, also called the passage of the Act “a milestone of Taiwan’s freedom and democracy.”

“I’ve said on the day of the 70th anniversary of the 228 Incident this year that the goal of transitional justice is reconciliation, not political vendetta; this is the principle that the government will insist on, as only when the people face the past together can the country move toward the future in unity,” she said.

The president said she “looks forward to the advent of the day when the work of transitional justice is complete and no political party in Taiwan would any longer need to bear the brunt of the country’s criticism against past authoritarian rule.”

“People would no longer harbor hatred against each other, trapped in painful historical memory. Taiwan will transform into a different country, and our democracy will also take a step forward,” she said.

President Tsai Ing-wen addresses victims and families of victims of political repression under Martial Law on International Human Rights Day 2016 (Photo courtesy of the Tsai Ing-wen official Facebook page).

TDB Vol. 1 No. 21: Lee Ming-che Sentencing a Warning to Others (Analysis)

TDB Vol. 1 No. 21: Lee Ming-che Sentencing a Warning to Others (Analysis)

More than the unfair treatment of a man who did nothing wrong, today’s sentencing is another reminder that China has no intention of playing by international rules. It is also a warning that Beijing has cast a much wider net to silence critics and those, Chinese and not, who propose an alternative system of governance in China. J. Michael Cole looks at the significance of today’s ruling.

 

The Yueyang Intermediate People’s Court in Hunan Province today sentenced Taiwanese human rights activist Lee Ming-che to five years’ imprisonment for “subversion of state power” and suspended his political rights for two years, a ruling that Taiwan’s Presidential Office and rights organizations worldwide decried as “unacceptable.”

Lee was arrested in March upon entering China via Macau. After disappearing for several months, he resurfaced in court in Hunan Province in September, where he was accused of collaborating with others in China and on social media to “attack the Chinese government” and promote “Western-style democracy.”

Peng Yuhua, a Chinese citizen who was accused of working with Lee in “organizing, planning and taking action to subvert national authority and overthrow the socialist system,” was sentenced to seven years in prison.

After today’s ruling, Lee said he would not appeal.

Amnesty International, Human Rights Watch and other organizations have described the sentencing as “absolutely outrageous” and a “warning signal” to other activists. In a statement, Taiwan’s Presidential Office wrote that “it is regrettable that the Lee Ming-che case has seriously damaged cross-strait relations and especially challenged Taiwanese people’s persistence and ideals for democracy and freedom.”

Lee is the first Taiwanese national to be sentenced for such a “crime” in China under the new National Security Law which passed on July 1, 2015 and which stipulates that preserving the national sovereignty and territorial integrity of the People’s Republic of China “is a shared obligation of all the Chinese people, including compatriots from Hong Kong, Macao and Taiwan.”

The court’s suspension of Lee’s political rights is no doubt meant to underscore Beijing’s contention that the new National Security Law applies to Taiwanese nationals (whom it regards as PRC citizens) regardless of where the alleged crimes are committed. We should note here that the said crimes Lee is accused of having committed occurred primarily online.

The heavy sentence is also meant to send a loud signal to other activists in Taiwan, Hong Kong and elsewhere that they, too, can now be apprehended and convicted for “crimes endangering national security” and the “people’s democratic dictatorship regime” as (loosely) defined in the Law, irrespective of where the said crimes have been committed, both physically and online.

The heavy sentence is also meant to send a loud signal to other activists in Taiwan, Hong Kong and elsewhere that they, too, can now be apprehended and convicted for “crimes endangering national security” and the “people’s democratic dictatorship regime” as (loosely) defined in the Law, irrespective of where the said crimes have been committed, both physically and online. This development will no doubt have a chilling effect on activists, academics, journalists, officials and artists who may fear that they have, at some point, promoted through their work or personal discussions online notions of democracy or sovereignty that can be construed as criminal in China.

Moreover, the existence of the Law, and now the precedent set by Lee’s arrest and sentencing, provides the means and empowerment for local officials to act independently and to disappear a suspect into the Chinese legal system, out of which it has become increasingly difficult to emerge — even for foreign passport holders. In other words, and as likely was the case with Lee, the arrest and sentencing of non-PRC nationals can now occur without a directive from, or even the knowledge of, the central government.

By targeting Taiwanese nationals and others who are engaged in the promotion of human rights and democracy, Beijing hopes to deter their engagement with likeminded elements in China and limit their ability to cooperate with them in defying CCP authoritarian rule. Thus, besides scaring off outside forces, the move also seeks to further isolate human rights activists in China, who under new rules governing foreign NGOs have already been having a tougher time connecting with the outside world.

More than the unfair treatment of a man who did nothing wrong, today’s sentencing is yet another reminder that China has no intention of playing by international rules. It is also a warning that it has now cast a much wider — and extraterritorial — net in its attempt to silence critics and those, Chinese and not, who propose an alternative, more liberal and democratic system of governance in China.

Photo: Chuyện Việt Nam

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