Taiwan’s legal experts are up in arms after the government executed two convicts last week on what was regarded as shaky deciding evidence and witness statements supplied by China’s Public Security Bureau.
The brothers, Tu Ming-hsiung and Tu Ming-lang, were among five prisoners executed on April 29. To the end, the brothers insisted they were framed by Chinese police for a series of murders in China’s Guangdong Province. Legal analysts say the brothers lost their constitutional right to cross-examination because the Taiwanese courts flatly accepted Chinese authorities’ contribution to the trials, warning that a precedent has been set with ominous repercussions for the hundreds of thousands of Taiwanese expatriates living in China.
Chen Wen-chi, the Director General of the Ministry of Justice's International and Cross-Strait Legal Affairs, defended the handling of the case in an interview with Asia Sentinel.
“The court ordered police to collect evidence, which the police located in mainland China, and that of course with the assistance of the Gongan (Public Security Bureau),” Chen said. “Then, after the evidence was taken back to the court, it was strictly examined during the trial, and the principle of due process was not violated.”
Chen emphasized that the evidence provided by China’s Gongan wasn’t the only evidence taken into account by the Taiwanese courts, “and that all evidence collected in mainland China was subject to particular critical examination by the Taiwanese courts in acknowledgment of the differences in the justice systems of Taiwan and mainland China.”
“The brothers said they were framed, and the way the victims were murdered reportedly points not at them but at military-trained killers. All I know for sure is that they were deprived of their right to cross-examine witnesses,” said Lee Chia Wen, an associate professor for criminal procedure at Taiwan’s National Cheng Kung University, who came upon the case while researching cross-border crime fighting. “Because the Taiwanese court now accepts evidence from China’s untrustworthy legal system, there is a high possibility that something similar will happen again to some of the many Taiwanese working, studying or traveling in China.”
Together with their father, who before the executions died in jail, the Tu brothers were found guilty in 2002 of the murders committed a year earlier of a Taiwanese businessman, three of his Taiwanese employees and a Chinese woman. According to the Taiwanese courts, the trio after the murders fled back to Taiwan, where they were arrested following a Chinese police alert, which was communicated to Taiwan’s judiciary through informal channels. At that time, the “Agreement on Jointly Cracking Down on Crime and Mutual Legal Assistance Across the Strait,” signed by Taiwan and China in 2009 hadn’t yet been in place.
The three were cleared in the first trial in July 2002 by southern Taiwan’s Tainan District Court, partly on grounds that the Chinese police did not send forensic evidence such as tape recordings, clothes or bags used in the crime, to Taiwan but only photographs. Contributing to the court’s decision to let them off the hook was the fact that a Chinese taxi driver cited by the Chinese police as a key witness against the defendants couldn’t be cross-examined because he was untraceable for the Taiwanese authorities.
The Tainan High Court in November 2002 overturned the lower court’s ruling, however, sentencing the defendants to death. The Tu brothers appealed to the Supreme Court, leading to six re-trials, resulting in the finalization of their death sentences in 2012.
“Strictly speaking, the Chinese police helped the Taiwanese police, but the Taiwanese court did not ask them to back up the evidence more, so that the right of the defendants to cross-examine witnesses and evidence was jeopardized,” Lee said.
“Adding insult to injury, the Supreme Court in its final statement explicitly expressed its high confidence in China’s legal system despite everybody knowing that this is not warrantable.”
Lee said the brothers’ execution also highlights a flaw in Taiwan’s own legal system, which is usually held in high regard for being by and large up to western standards. There has long been a tendency among Taiwanese judges to accept hearsay exceptions, their mindset being that otherwise too much valuable information cannot be used in the court.
“The court believes it hasn’t done anything special in the Tu brothers’ case because even though it is unconstitutional, exceptions to the right to cross-examination are often made in Taiwan, for example when a witness dies or cannot be traced,” Lee said.
Just as the informal judiciary channels between Taiwan and China that led to the Tu trio’s downfall were largely uncontroversial in Taiwan for the obvious reason that it has always been tempting for Taiwan’s bad guys to hide in China, the Agreement on Jointly Cracking Down on Crime and Mutual Legal Assistance Across the Strait is often cited as a poster child of cross-strait cooperation.
Since its implementation, the pact has led to the mediagenic repatriation of hundreds of wanted criminals including suspected murderers, telecom fraudsters, drug dealers, economic offenders and corrupt officials, the most recent prominent cases being two suspects in a botched high-speed train bomb case that failed to hurt anyone last year as well as former Bamboo Union gangster boss Chang “White Wolf “ An-lo, who is now free on bail nonetheless, vociferously steering a political party dedicated to achieving cross-strait unification.
According to Chen In-Chin, a professor at Taiwan's National Central University’s Graduate Institute of Law and Government, one problem with the cross-strait judicial agreement is that its wording is vague, much vaguer than a similar agreement Taiwan has with the United States.
“The Taiwanese government kept it deliberately ambiguous because otherwise Taiwan’s courts would have to challenge China’s authorities’ adherence to due process, which our government doesn’t want, given that it lacks the guts to stand up to China,” Chen charged.
And as to whether Taiwanese courts should accept evidence and witness statements provided by the Public Security Bureau in the first place, Chen noted that although the bureau has been making improvements, all criminal cases in China are still dominated by them, “and when the Gongan (the Public Security Bureau) says ‘yes’, prosecutors won’t say ‘no’, and then the courts follows what the Gongan says.”
Making matters worse, Chen said, is that the Chinese authorities go after Taiwanese fugitives only arbitrarily, as proven by the case of Chen Yu-hao, the onetime chairman of the Tuntex Group, who has been a fugitive hiding in China since his indictment for embezzlement in Taiwan in 2003. In his factories in Fujian province, Chen Yu-hao is now openly making a fortune by producing paraxylene (PX), a chemical essential to the manufacture of plastic bottles and polyester clothing.