As the legal system grapples with overseas gangster crimes, the Minister of Justice produces unprofessional KMT screed

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CLARITY UPDATE: Need to make clear. The 45 Taiwanese entered Kenya illegally and thus, based on its own laws, Kenya can deport them back to their point of origin, which was China. Kenyan government officials made this clear. Article 43 of Kenya's immigration law specifies that the default option is to return them to point of origin, and also specifies that once a person is found to have entered Kenya illegally, then they can be deported at the Cabinet Secretary's whim. This was not an abduction/kidnapping. This is a deportation back to port of embarkation. That is why China got them. It did not need to make a formal request, because someone probably explained to the China police, who had been there since Dec 2014, that if they waited, the prisoners would be deported back to China.

The Taipei Times reported on the bizarre and revealing complaint of Minister of Justice, which she acknowledged, had been written largely by herself....

A statement issued by the Ministry of Justice (MOJ) late on Saturday has further fueled conflict between lawmakers and Minister of Justice Luo Ying-shay (羅瑩雪), with netizens accusing Luo of treating the ministry’s Web site as her personal Facebook page.

The netizens were quite right, in their way, but then so was Luo.

“As you all know, cross-strait ties are complicated. It is not like the other side [of the Taiwan Strait] will agree to whatever we say. Just like in Taiwan, not all students listen to their professors,” the statement said.

Under the 2009 Cross-Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement (海峽兩岸共同打擊犯罪及司法互助協議), everything ranging from exchanging criminal intelligence resources and launching joint investigations to handing over evidence can only be carried out following cross-strait negotiations, the statement said.

“The ministry is not entitled to make any unilateral decisions,” it added.

The statement went on to blast lawmakers, saying they were shifting blame onto the ministry over the release of 20 Taiwanese fraud suspects deported to Taiwan from Malaysia on Friday last week due to a lack of evidence, which is still in China’s hands and has yet to be referred to Taiwanese authorities.

“These lawmakers act as if China is at the ministry’s beck and call, and have no regard for the time needed for bilateral negotiations. They denounce China, on one hand for the sake of sowing hatred and social divisions, and on the other hand, they ask the ministry to obtain relevant evidence from China,” the statement said.

“Such manipulation of populism is likely to have a disastrous effect on Taiwan. Please, lawmakers, if you truly love Taiwan, stop now before going too far. Give Taiwan a break,” it said.

It's high comedy to listen to KMTers plead to pro-Taiwan types to "give Taiwan a break" but however unprofessional this screed was, Luo was right: there isn't anything that the Ministry of Justice can do. This was a screw-up by MOFA that dates back over a year, with deep roots that go back to wrongs like the KMT's refusal to create an independent Taiwan and the vicious Han Chauvinism at the heart of the KMT identity, which regards brown people as not worthy of relations.

One interesting thing in this mess is the reference to inciting "social divisions" (= saying out loud that Taiwanese are not Chinese) and "populism". These are classic KMT propaganda tropes. Last year then-presidential candidate (now KMT Chair) Hung Hsiu-chu gave us a  stellar example of this.

Governing the country through populism: The final, most extreme example of this is obviously the Nazis. The Nazis ceaselessly created enemies within the country to control the entire society. Think about it: Although Taiwan isn’t that extreme, isn’t our situation like that? It’s like that classic saying: “When the Nazis were killing the Communist Party, I wasn’t in the Communist Party, so I said nothing. When Nazis killed the Jews, I wasn’t a Jew, so I said nothing. When the Nazis killed the Catholics, I was a Protestant, so I said nothing. When the Nazis arrested me, there was no one there to speak for me.” Isn’t this kind of scene a little familiar to us?

When soldiers are bullied by populism, we aren’t soldiers, so we don’t speak. When teachers are bullied by populism, we’re not teachers, so we don’t speak for them, either. When civil servants are bullied by populism, we aren’t civil servants, so we don’t speak for them, either. But don’t you worry that on the day when you’re bullied, there will be no one to speak for you?

There’s no shortcut to resisting populism. The people in society who are willing to listen to reason can only choose to stop being a silent majority...

The strike at "populism" reflects, as I noted them, the colonialist fear of majority rule, supported by reference to three strong supporters of the KMT, the military, the educational bureaucracy, and the civil service. ADDED: Ben Goren pointed out on Twitter that the "students-professors" remark was a slap at the Sunflowers.

The China Post ran a good article outlining some of the problems with Taiwan's organized crime against China. In my opinion the Kenya case was not a signal to the incoming Tsai Ing-wen Administration, but a signal to Taiwan that China is fed up with being targeted by Taiwan scammers, about which the government does nothing. The article observes...

According to police statistics recently released by the Chinese-language United Daily News, Taiwan authorities have brought back more than 6,000 nationals involved in fraud charges from overseas since 2005.

Another statistic shows that cross-border fraud rings involving Taiwanese citizens made 4.7 billion phone calls to potential victims in mainland China from January to June 2015 alone.

As noted by China's Taiwan Affairs Office (TAO), Taiwanese cross-border scams have conned billions of renminbi out of Chinese citizens every year, which is one of the main reasons Beijing would forcibly send the Taiwanese who were believed to be responsible for fraud schemes to China despite Taiwan's strong protest.

....

Another reason for rampant phone fraud in Taiwan, as pointed out by Taiwanese lawmakers, is that the local court treats scammers "too leniently."

Taiwan's Criminal Code stipulates that those convicted of fraud through the use of telephones or other communication equipment will face imprisonment of not more than five years.

For instance, in June 2011, in a joint effort with Indonesian police, Taiwan managed to have 100-plus Taiwanese fraud suspects operating in the East Asian country returned to Taiwan.

However, a court later gave 26 of these 100-plus suspects lenient sentences: 17 were given suspended sentences, eight were offered the option to pay fines in exchange for jail terms, and only one was sentenced to a year in prison.

In fact, the China Post commentary admits, many citizens support China in this because they want to see the alleged scammers punished, which Taiwan is not doing (a fact which few commenting on this case are mentioning). Almost everyone in Taiwan has a friend or family member who has been victimized by scammers. I can name 3 people in my family, and several of my neighbors. China, the commentary observes, gives such people ten year sentences.

The fraud rings have evolved, moving out of Taiwan and further across the Indo-Pacific region, to get out of the reach of China, as I was noting a few days back....

The CIB said that cross-country fraud rings have migrated from Taiwan to China, and now to countries in Southeast Asia and Africa.

From 2004 to 2008, annual fraud cases passed the 40,000 mark, though after the Cross-strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement came into effect in 2009, cases have fallen to 30,000.

Fraud rings have since moved their operations and platforms to third countries such as Indonesia and the Philippines after 2010, the CIB stated.

According to the media, the Ministry of Foreign Affairs (MOFA) is finally bestirring itself. In 2014 40 Taiwanese were arrested in Egypt for phone scams. They were subsequently sentenced to a year in prison and now MOFA is assuring us that when the sentences are finished they will be repatriated to Taiwan. Unlike the Kenya case...

Meanwhile the legislature is attempting to come to grips with the problem. Hung Tz-yung, my own legislator, made a few proposals...

Meanwhile, Hung Tzu-yung (洪慈庸) of the New Power Party is promoting an amendment to Article 7 of the Criminal Code to remove a provision that limits the application of the law in the event that the offenses are committed outside the Republic of China (Taiwan).

Currently, for offenses committed outside R.O.C. territory, the Criminal Code only applies if they are serious crimes punishable by at least three years in prison, according to the provision.

Hung said due to this restriction, Taiwan nationals arrested overseas for operating cross-border telecommunications fraud scams cannot be charged according to the Criminal Code after they are deported back to Taiwan, because the offense carries a sentence of merely one to seven years.

In many cases, she said, those involved in cross-border fraud scams were only given light sentences and were even acquitted, inviting criticism that Taiwan is a “haven for fraudsters.”

She's absolutely right. The incoming Justice Minister said there is no need to revise the law...

Taiwan's Criminal Code stipulates that those convicted of fraud through the use of telephones or other communication equipment will face imprisonment of not more than five years, Chiu said in a radio interview.

In 2004, however, the nature of the penalties for fraud offenses was revised to "one offense, one penalty," Chiu said, explaining that this means that the court can build up sentences based on the number of victims.

If moves are made to revise the code, "all (the relevant) sentences will be aggravated, and Taiwan will as a result become a country that has adopted heavy penalties," he said.

As it stands today, a defendant convicted of multiple fraud charges can be sentenced to up to 20 years in prison, depending on the severity of the crime and the judges' discretion, the minister-designate said.

Sure, judges have discretion, but they use it to avoid punishing the criminals. For example, in the 2011 case of the 14 scammers which Manila had sent to China, after they were returned they were tried, and all were permitted to pay fine. None served time.

KMT Chair Hung Hsiu-chu said something had to be done, because exporting fraud rings is very embarrassing.

Indeed, it is embarrassing. In fact, it is costing Taiwan the moral high ground in the international media, and permitting the PRC to completely play the government. As Solidarity noted in an email this morning, the suspects repatriated from Malaysia were immediately released. The Taiwan government claimed that the PRC had not provided the evidence against them, so it had to release them. Solidarity pointed out that the PRC may have withheld the evidence deliberately to provoke this outcome, so it could criticize Taiwan.

But news reports indicate that Taiwan did indeed have some evidence: transcripts of the police interrogations from Malaysia. No doubt the prosecutors could have found a reason to hold the men, had they really wanted to. Once again, the KMT government fumbled the ball -- it didn't even go through the motions of making sure the men were held for a few days until China delivered the evidence. It didn't even bother to save face by claiming that the men had been released "by mistake" -- "well dang, we tried to notify them to hold them men, but our message arrived to late." It simply handed China another PR opportunity, as the international media are reporting.

UPDATE: Ah, internet surfing. This from the 2011 case in which Phils sent 14 accused to China instead of to Taiwan, causing an uproar:

Some academics said the case had less to do now with Manila than Beijing, mostly because of imprecise language in the cross-strait agreements, including the Agreement on Joint Cross-Strait Crime-Fighting and Mutual Judicial Assistance.

“There was nothing wrong with the decision by the Philippines,” said Yang Yun-hua (楊雲驊), an assistant professor of law at National Chengchi University, in terms of jurisdiction and the location where the crimes were committed.

While under Taiwan’s criminal law, crimes committed in China are treated as if they occurred in Taiwan — the result of an antiquated Republic of China Constitution — this clause is not fully understood by other countries, he said.

UPDATE: The pro-KMT China Times lays down some smack on all the noise-makers:

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

UPDATE: Good comments below, guys. Thanks!
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