Taiwan's Return to Dark Days? You be the Judge

By Stephen A Nelson
Asia Times Online
January 17, 2009

TORONTO, Canada - In a world rife with deadly terrorist strikes in India, anti-government riots in Thailand and civil wars in the Middle East, it may be hard for the rest of the world (even in Asia) to see Taiwan's struggle for democracy as anything more than a tempest in a China teapot. And certainly a worldwide economic crisis has eclipsed concerns for Taiwan's future as a separate state with de facto independence from China.

For many "China experts", last year's return to power of the old Chinese Nationalist Party (Kuomintang or KMT) in Taiwan was seen as a return to peace, order and good government by Taiwan's natural governing party. The restoration of the ancient regime was largely hailed as a good thing in Beijing, Washington and the international community.

To them, KMT President Ma Ying-jeou has "the right stuff". And the new trade and transportation agreements with China are viewed as "one small step" for Taiwan but "a giant leap" for regional peace and prosperity - despite consternation from Japan.

Even the KMT government's raft of arrests, detentions and imprisonments of senior Democratic Progressive Party (DPP) officials - especially former president Chen Shui-bian - is seen as a campaign designed to root out corruption and bring evil-doers to justice.

But other Taiwanese and critics say that Ma and his inner circle of senior KMT officials - most of whom have close ties to China - have made too many concessions and have already surrendered Taiwan's sovereignty to Beijing.

The critics say that Chen's imprisonment - and the arrests of many other DPP officials in the past months - bears all the hallmarks of a political witch-hunt. To them, it looks like a KMT campaign meant to silence political opposition to its aggressive pro-China policy - and to settle old scores with Chen Shui-bian and the DPP.

According to the highly regarded Taiwan Communique, these concerns "arise from popular fear that Ma's government, which has allowed a reactionary KMT to set policy, is ready to turn the clock back to the martial law-era if it will advance its goals and please its negotiating partners in Beijing. In addition, there is popular discomfort over the egregious lack of accountability and transparency in the secretive party-to-party negotiations that Ma and Beijing are pursuing in contradiction of Taiwan's own laws and constitution."

This has resulted in an ongoing war of words in the international press between the KMT government and those concerned with human rights and democracy in Taiwan.

In November, a coalition of human-rights, judicial reform and social movement organizations - including the China Rights Network and Taiwanese Human Rights Association of Canada - accused the KMT of "pulling Taiwan's human rights standards down to the level of the People's Republic of China (PRC)”. In an open letter published in several newspapers, the coalition cited suppression of protests during the visits to Taiwan of Chinese officials. They also complained about the apparent persecution of Chen Shui-bian, his family, and other DPP officials.

Also in November, similar criticism came from a group of 20 leading American, Canadian and Australian experts on China and Taiwan - including Nat Bellocchi, Washington's former de facto ambassador to Taipei. The group said the recent acts by the KMT administration resembled "the unfair and unjust procedures practiced during the dark days of martial law".

In particular, the experts said that the persecution is obvious because "only DPP officials have been detained and given inhumane treatment such as handcuffing and lengthy questioning, while obvious cases of corruption by members of the KMT - including in the Legislative Yuan - are left untouched by the prosecutors or at best are stalled in the judicial process".

In their joint statement, the scholars and journalists complained that the KMT was using the judiciary - the legal system of prosecutors, investigators, judges and courts - to persecute political opponents.

"We also believe that the procedures followed by the prosecutor's offices are severely flawed: while one or two of the accused have been formally charged, the majority is being held incommunicado without being charged. This is a severe contravention of the writ of habeas corpus and a basic violation of due process, justice and the rule of law," the experts said.

And, they protested, "the prosecutor's offices evidently leak detrimental information to the press. This kind of 'trial by press' is a violation of the basic standards of judicial procedures. It also gives the distinct impression that the Kuomintang authorities are using the judicial system to get even with members of the former DPP government."

This prompted a counter offensive from the government, which has accused the petitioners of getting their facts wrong.

In two open letters - published in English and Chinese - Minister of Justice Wang Ching-feng insisted that Taiwan is a country where rule of law pervades. She said that the arrests and detentions of Chen Shui-bian and others are legal and necessary to prevent them from colluding with co-conspirators, destroying evidence or fleeing the country.

In the first letter, Wang wrote, "We in the Ministry of Justice ... want to reassure those who are concerned about Taiwan, including those who wrote and signed the open letter, that there will be absolutely no erosion of justice in Taiwan, no matter who the accused is."

In the second letter, Wang insisted that the judiciary is acting independently from any political influence and stressed that President Ma Ying-jeou is not interfering with the legal process.

"Therefore, the allegation of prosecutorial bias against the DPP is entirely baseless," she said. "All of our prosecutors, without exception, are under the supervision of the prosecutor-general. There can be no doubt that our public prosecutors endeavor to prosecute crimes and protect the innocent while respecting due process."

But Taiwan watchers remain skeptical. Among them is Dean Karakelas, a Canadian journalist and political scientist who lived in Taiwan for eight years.

"Twice now, respected international scholars have signed an open letter pointing out bias in the actions of the ROC judiciary, and twice now the Justice Minister has responded defending the legality of its actions," said Karakelas.

"Let's be clear: it is not the legality that is being contested, but the morality. It is easy for a party that controls all five branches of government to make all its actions legal," he said. "But if the current ROC government wants foreign journalists to stop reporting on its unethical and undemocratic behavior, it is going to have to do more than point out how eminently legal these immoral persecutions are: it is going to have to behave responsibly, transparently and with respect for the principles of democracy."

And many familiar with Taiwan's realpolitik say that Wang Ching-feng's counter-offensive misses the point, because President Ma Ying-jeou is not pulling the strings - but his old guard KMT comrades are.

"I am very concerned about the judicial happenings," said Bruce Jacobs, director of the Taiwan Research Unit at Monash University in Melbourne, Australia. "I'm not convinced this is being orchestrated by Ma. More likely, if it is being orchestrated, it is coming from [KMT chairman] Wu Poh-hsiung and [honorary KMT] chairman Lien Chan."

Others would add the name of another conservative force in the KMT: former governor of Taiwan province James Soong.

But if that's true, how would the KMT control the judiciary anyway?

"Taiwan has never had true transitional justice," said Jerome Keating, author of several books, including Taiwan: The Struggles of a Democracy. The KMT has always controlled the Legislative Yuan and through that the appointments to the Control Yuan [the body governing the judiciary]."

Keating said that during the Chen years, KMT legislators stifled the Control Yuan "allowing no appointments and thus paralyzing that body".

As a result, the vast majority of judges in Taiwan - especially senior judges - came up through the old political vetting process during the martial law era and is profoundly pro-KMT. In short, they were appointed by (and beholden to) the KMT.

Michael Turton, host of the highly regarded website The View From Taiwan, concurs. "Judges become judges by passing a fiendishly difficult exam which they devote all their time to, and they lack experience of the world and social and political maturity," he said.

If that's true, should the trials of Chen Shui-bian and others come as a surprise? And is Taiwan really returning to its dark days of martial law?

"Yes, I am surprised, but not totally," said Jacobs. "I would not phrase it [that way], as Taiwan has clearly not returned to the bad authoritarian past."

But, Jacobs noted: "The two institutions that have been slow to democratize are the judiciary (including the prosecutors) and the media."

Karakelas also disagrees with the idea that Taiwan is slipping back into a dark night of martial law. "Although the events taking place under Ma's watch are undeniably undemocratic, he is inadvertently doing the DPP a huge favor," he said.

What's more, Karakelas said, the anti-democratic moves of the KMT may spark the rebirth of a pro-Taiwan, pro-democracy DPP.

"By taking the steps he is taking, Ma's KMT is forcing the DPP back into its old role as rebellious, persecuted protest party," said Karakelas. "He's turning them back into guerrillas. [The DPP] was originally formed as a force to oppose the KMT's one-party rule ... and it lost its path when it took the reins of power. Ma is pushing the DPP back to a position in which it is comfortable, and where it operates best."

Karakelas is among those who point out that many in Taiwan voted for Ma Ying-jeou because Ma was supposed to represent a break with the KMT's past. Yet three prominent members of that martial-law era regime - former vice president Lien Chan, former governor James Soong and current KMT Chairman Wu Poh-hsiung are part of Ma Ying-jeou's inner circle.

So what does this say about Ma's leadership and who's really running the country?

Karakelas and others say this demonstrates that either a) Ma is too weak to resist the temptation to wield his executive power in undemocratic ways, or b) that the KMT is still inherently incapable of operating in a democratic, multi-party system.

"Like it or not, Ma is engaged in a zero-sum game: rapprochement with China must inevitably be paid for by sacrificing some of the freedoms that Taiwanese people have fought hard for," said Karakelas.

Karakelas said that the real problem is not "how will Ma balance the loss of civil liberties on one side and closer relations with China on the other side"? The real problem is "at what point will Ma lose control of his balancing act"?

In fact, Karakelas said, "Ma isn't in control, even now, of the balancing act, and that what we're really accusing him of is failing to rein in the more conservative forces within the KMT that are running wild - both in terms of political persecutions at home and abroad making rogue deals with China."

Jacobs also seems think that Ma is not really in control - and that the KMT old guard is.

In an editorial in the Taipei Times last fall, Jacobs noted that "the KMT still remains unreformed, but party reform has become even more urgent".

In the editorial, Jacobs said, "The KMT center, and not the Democratic Progressive Party, has become the most important opposition to the Ma government." Jacobs cites open rebellion from KMT legislators, as well as harsh criticism of Ma appearing in pro-KMT newspapers - as well as on the KMT's own news website, KNN.

Jacobs went on to say that the only solution was for Ma to move out the old conservative men in the KMT and take the reins himself.

Jacobs concluded the editorial by saying, "Clearly, gaining control of the KMT is much more than a domestic matter. And it is vital to the maintenance of Taiwan's democratic health. President Ma, please act soon!"

In the meantime, former president Chen Shui-bian is back in jail until his trial. There he will stand accused by special prosecutors who have vowed to get results. And he will be tried by a KMT appointed and approved judge - Taipei District Court judge Tsai Shou-shun - that critics say has already made up his mind that Chen is guilty.

Or, as the English-language Taiwan News put it: "Besides being reminded of former KMT secretary general Hsu Shui-teh's famous admission that 'the courts belong to the KMT', the script being followed should be familiar to anyone who observed politics in Taiwan during the KMT's decades of authoritarian or one-party dominant rule. Namely, if the KMT loses based on the existing game rules, it ceases to follow the rules or rewrites the rule book."
On his website, Turton wrote that this turn of events makes it clear that the trial of Chen Shui-bian is a political persecution. "Even the dullest spectator can understand a kangaroo court," he says.

"It's ironic - a fair trial with competent judges and prosecutors would have almost certainly resulted in a conviction - but now that the KMT has removed judges it doesn't like and played havoc with the prosecution and the trial process, it has tainted any conviction obtained," Turton said.

So what then is the future of Taiwan's struggle for democracy?

For years, under Lee Tung-hui, and later Chen Shui-bian, Taiwan's government enjoyed a positive reflection in the international press, with the possible exception of Xinhua. "The nation's commitment to human rights, democracy, civil society and transparency were hailed as groundbreaking," said Karakelas.

"The current government of Ma Ying-jeou should not be surprised that this positive reputation is being soiled. It has been scrambling to silence the reporters and commentators that report on its undemocratic behavior. It should be aware that Western journalists are not as easily intimidated as those in Taiwan," he said.

But what about in Taiwan? What will be the fate of the democratic movement?

"It's been said that the very powerful and the very stupid have one thing in common,” said Li Sai Fung, a former radio broadcaster in Taipei. “Instead of altering their views to fit the facts, they alter the facts to fit their views - which can be very uncomfortable if you happen to be one of the facts that need altering.”

For the KMT old guard, said Li, "Chen-Shui Bian and the DPP is one of the facts that needs altering."

Stephen A Nelson is a Canadian freelance journalist now based in Toronto but with one foot still in Taiwan. For eight years he worked as a journalist in Taiwan, including two years at the Taipei Times newspaper. He was also a broadcaster at Radio Taiwan International, where he produced Strait Talk, a weekly program about Taiwan and its place in the world. He welcomes professional enquiries.