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Siding with the Rule of Law

Author: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies
August 19, 2010
South China Morning Post

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This is the start of my third year publishing a biweekly column in the South China Morning Post and in Taiwan's Chinese language China Times. Most of these “op-eds” have concerned contemporary issues of law and justice in China, Taiwan or both as well as political-legal questions arising from the cross-strait reconciliation that began in 2008 with Taiwan President Ma Ying-jeou's inauguration.

All the problems I discuss are sensitive, whether they relate to criminal justice, the legal profession or good government. I try to play the role of a constructive critic, pointing out problems that require attention and suggesting possible improvements.

Regarding China, I am neither pro- nor anti-communist but seek improvements in the government that exists. Regarding Taiwan, I am neither “green” nor “blue” but am a supporter of the island's remarkable democratic and institutional transformation of the past two decades, a momentous development in Chinese history.

When I started writing these columns, some Taiwan observers expected me to give all-out support to my friend and former student, President Ma. Others expected me to side with the Democratic Progressive Party (DPP) because of my friendship with another ex-student, former Vice President Annette Lu, and my opposition to the Kuomintang (KMT) repression in the island's long authoritarian era. I am sure I have disappointed all such expectations, since I try not to allow either friendship or previous political history to influence my focus on issues of the greatest importance to me: open democratic governance, human rights and the rule of law.

I too have been disappointed--by those  in Taiwan who analyze issues of law and government in terms of their impact on one side or the other in the island's overheated partisan politics, rather than on their merits. Paradoxically, in China, where no opposition political party is tolerated, criticism and suggestions for reform, at least superficially, have often focussed on the merits of the topic discussed rather than partisan implications. Of late, however, a rising nationalistic tide has led an increasing number of writers to substitute patriotic rhetoric for responsible analysis.

Against this background, I was not surprised to read a recent, long attack on my scholarly standpoint by a researcher on Taiwan affairs at Shanghai's Institute of International Studies, Zhao Nianyu. Like nationalists in many countries including my own, he asks why foreigners who don't agree with him don't “mind their own business.”

Why would a foreign commentator suggest that the very important cross-strait Economic Cooperation Framework Agreement (ECFA) ought to receive article by article scrutiny before Taiwan's legislature approves it? Why would he maintain that the corruption conviction of Taiwan's ex-president Chen Shui-bian should be based on a trial that did not raise serious doubts about the actions of prosecution and court? Why would the commentator urge the Ministry of Justice to stop trying to discipline Chen's dynamic defense lawyer? Why would the commentator call for an independent commission to investigate allegations that corruption prosecutions may have been “selective”? And why would he ask the Taiwan government to grant an entry visa to Rebiya Kadeer, a leader of the Uyghur independence movement living in exile in Washington, D.C.?

To Zhao, there is only one possible answer. After studying many of my essays, he concludes that I must be “Green.” He accuses me of appearing to be an objective observer who has Taiwan's best interests at heart, but covertly advocating Taiwan independence and the fall of President Ma's KMT government.

Zhao pays little heed to the reasons I have voiced to support my recommendations. To him, strengthening parliamentary democracy and transparency, giving an indisputably fair trial to a former president, protecting vigorous criminal defense lawyers, restoring public trust through independent investigation of allegations about selective prosecutions, and maximizing freedom of information by admitting controversial visitors--all such policies are merely false screens designed to frustrate peace and reconciliation between Taiwan and China.

To be sure, Zhao has difficulty confronting inconvenient truths. He cannot find any statements by me in support of Taiwan independence or the DPP. Moreover, he has to recognize that, in the very article about ECFA that he censures, my colleague and I praised President Ma's achievement in successfully negotiating more than a dozen important agreements with Beijing culminating in ECFA, despite the fact that the two sides have reached no common understanding of the “one China” policy.

Any objective reader would have to infer that we favor ECFA and the reconciliation process introduced by Ma. Yet, Zhao claims that even these paragraphs, if properly understood, are cleverly phrased in lawyer's language that implicitly casts doubt upon the legality of Ma's cross-strait accomplishments!

Zhao attributes my recommendations for various legal reforms in Taiwan, which he claims to be covert advocacy of Taiwan independence, to my failure to comprehend Chinese culture, especially China's legal culture. Apparently his argument is that, if I did understand Chinese culture, I would not have suggested strengthening parliamentary democracy and government transparency, giving a fair trial to Chen Shui-bian, protecting criminal defense lawyers, establishing an independent commission to erase doubts about prosecutorial impartiality, or enhancing public access to relevant information. Although Zhao doubts whether I personally am capable of a deep understanding of Chinese culture, he holds out the hope that “any instigator” who lives in China and Taiwan for twenty years might become enlightened enough to appreciate the correctness of the “one China” policy.

I too share the Confucian belief in the educability of man. Yet I hope it won't take Zhao another twenty years to appreciate the intrinsic desirability of executive branch responsibility to an elected legislature, due process of law, vigorous criminal defense, independent investigative commissions and unrestricted information. Moreover, as C.V. Chen, a leading Taiwan lawyer and prominent KMT advisor recently emphasized: “the rule of law is the essential foundation of enduring stability and peace in the cross-strait relationship.” And he's no “Green.”

Professor Jerome A. Cohen is co-director of NYU School of Law's US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. See also www.usasialaw.org.

This article appears in full on CFR.org by permission of its original publisher. It was originally available here (Subscription required).

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