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 Whistleblowers Need Protection



Paper prepared by Hon. David Kilgour, J.D.
An International Forum on the 60th Anniversary of the Universal Declaration of Human Rights
Garden Villa Hotel
Kaohsiung City, Taiwan
11 December, 2008


December 10 marks the tenth anniversary of the ground-breaking of the Human Rights Monument on Green Island in Taiwan. It serves as a reminder of your country's history of political persecution and human rights abuses between from the late 1940s through the end of the 1980s. A total of 20,000 to 30,000 political prisoners of conscience, including author Bo Yang and many of the defendants in the Kaohsiung Incident, were imprisoned on the Taiwanese version of the South Africa's Robben Island.
Bo Yang, who passed away this year, was imprisoned on the island in 1969 after he translated a "Popeye" comic from English to Chinese. He was accused of making fun of your late president Chiang Kai-shek, and served a ten-year sentence for "undermining the affection between the people and the government." With many intellectuals, Bo Yang sought to expose the totalitarian nature of governance then on both sides of the Strait of Taiwan.
December 10th is also the 29th anniversary of the notorious Kaohsiung Incident of December 1979. Much has been written about its mindless and brutal violence against so many residents of this city, but I believe the most comprehensive account is found at It includes a link to "The Kaohsiung Tapes", which contains the full text of what was said during the night of December 10th. The incident proved a major turning point in Taiwan's transition to democracy, in particular since many of the defendants and lawyers became prominent leaders in a rule-of-law and democratic Taiwan.
As you all know, there has still been no closure on the deaths of Assemblyman Lin Yi-hsiung's mother and two daughters, who, as related in the Kaohsiung Tapes, were killed in their home while Mr. Lin was held in detention. Many continue to ask why the offenders have not been found and charged.


The past three decades have seen Taiwan emerge as a beacon of hope for rule-of-law and democratic development in much of Asia. However, turning to recent developments, many Taiwanese and friends of Taiwan abroad are saying that there has been a dramatic deterioration in the rule-of-law, human dignity and democratic practices in recent months. This phenomenon can be divided into two parts:
1.       The disproportionate police response during the visit of China's envoy Chen Yun-lin, which led to many citizens, including a number of your legislators, being hospitalized with a broken arm, concussions and other injuries. We also wonder why police prevented people from waving the national flag (and in many cases even confiscating them), while people wearing T-shirts with "I love Taiwan" were told to remove the T-shirts.  What happened to the principle of freedom of expression?
 In particular I should like to refer to the "Wild Strawberry" student movement, which started on November 6th in response to excessive use of force by the police, resulting in large numbers of civilian injuries. The group also protested the severe infringement on freedoms of speech during the events surrounding Chen Yun-lin's visit. The students continue to demand quite reasonably a revision of the Parade and Assembly Law.
2.         Many are also concerned about the arrests and "preventive detention" of former members of the DPP government. This led twenty-two international scholars and writers to issue an open statement on November 4th, which can be accessed at
Recently, the drafters of the statement received a response from Taiwan's current Minister of Justice, Wang Ching-feng, which was published in the Taipei Times at:
Their response to the minister's explanation is so important to the rule of law in any democratic country that I venture to quote it in its entirety. It reads:
November 28th 2008 letter to the Honourable Wang Ching-feng, Minister of Justice, Taipei, Taiwan
 "In an open letter to the Taipei Times, published on November 25th 2008, you responded to our joint statement regarding the erosion of justice in Taiwan.  We appreciate your acknowledgement of the sincerity of our concerns, and are grateful to receive a prompt and serious reply.  Based on the information available to us, however, we remain concerned about choices made by prosecutors in applying existing legal authority and strongly believe in the need for reform. Please allow us to highlight a number of specific points:
1.     The procedure of 'preventive detention'. This procedure is obviously intended for serious criminal cases in which the suspect is likely to flee the country.  In his November 13th article in the South China Morning Post, Professor Jerome Cohen states that "it ought to be invoked rarely."   Yet, during the past weeks, it has been used across the board, and it has been used only against present and former members of the DPP government.  This casts severe doubts on the impartiality of the judicial system.  We also wish to point out that the people involved were detained under deplorable circumstances, and that they were not even allowed to see relatives.
2. The open letter contains the argument that when they were detained, the present and former DPP government officials "were all informed of the charges that had been brought against them."   This is simply not correct: when they were detained, they were subject to lengthy interrogations – in some cases for up to 20 hours – which bore the character of a "fishing expedition", and do not represent a formal indictment in any legal sense.  In most cases the prosecutors had had months of time to collect information: if they did have sufficient evidence of wrong-doing, they should formally have charged the persons and let them have their day in a scrupulously impartial court of law. That would be the desirable procedure under the rule of law in a democratic society.
3.The open letter also states that the persons involved had "the right and ability to communicate with their attorneys to seek legal assistance."  It neglects to mention that in all cases where people were detained, the discussions with the lawyers were recorded and videotaped, while a guard took notes.  This information was then immediately transmitted to the respective prosecutors.  We don't need to point out that this is a grave infringement on international norms regarding the lawyer-client privilege, and makes mounting an adequate defense problematic at best.

4.On the issue of leaks to the press, the letter states that under the Code of Criminal Procedure information on ongoing investigations can only be disclosed by spokespersons of the prosecutor's offices and that unauthorized disclosure is subject to criminal prosecution.  The fact of the matter is that during the past weeks, the media has been filled with information on the ongoing  investigations which could only have come from the prosecutors.  We may point out one example, but there are numerous others:  Only a few hours after former Foreign Minister Mark Chen was questioned on November 3rd, the Apple Daily (a local tabloid) ran an article that "the prosecutors are thinking of charging Dr. Chen in relation to the case."
The issue of violation of the principle of secret investigation was also raised by Shih Lin District Court Judge Hung Ing-hua, who strongly criticized the present situation and procedures followed by your Ministry in an article in the Liberty Times on November 17th 2008.
We may also mention that we find it highly peculiar that no steps whatsoever have been taken against the various prosecutors who leaked information, while we just learned that the Ministry of Justice is now taking steps against Mr. Cheng Wen-long, the lawyer for former President Chen Shui-bian, who presumably "leaked" information to the press.  The Ministry sent a formal request to the Taipei District Prosecutor's Office asking the office to investigate and prosecute, and also sent a formal request to Taiwan Lawyer's Association and asked the association to review the case and see whether Cheng should have his license revoked.
It is our understanding that the statements Mr. Cheng made were in relation to former President Chen's views on Taiwan's situation and its future, and an expression of love for his wife, but did not have any bearing on the case against him.  We hope you realize that if the Ministry proceeds along these lines, this will be perceived as a direct confirmation of the strong political bias of the judicial system.
5.The letter states that it is untrue that Taiwan's judicial system is susceptible to political manipulation.  If this is the case, how can it be explained that in the past weeks, 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 stalled in the judicial process?
We may also refer to expressions of concern by Prof. Jerome Cohen and by lawyer Nigel Li, who expressed his deep concerns about the preventive detentions in an editorial in the China Times on November 9th 2008.  In his editorial, Mr. Li praised the remarks made by prosecutor Chen Rui-ren, who was part of the legal team prosecuting the special fund cases, that the prosecutors' offices should "avoid the appearance of targeting only one particular political group."
The fact that the Special Investigation Task Force was set up under the DPP Administration or that the prosecutor general was nominated by President Chen is not at issue here.  The problem is that the present system is being used in a very partial fashion.
We may add that the fact that you yourself have publicly discussed the content of the cases does create a serious imbalance in the playing field, and undermines the basic dictum that a person should be considered innocent until proven guilty in a court of law.  Under the present circumstances it is hard to see how the persons involved – including former President Chen Shui-bian – can have a fair trial in Taiwan.
6.Lastly, the statement by the US State Department is interpreted in the letter as an "endorsement" of Taiwan's legal system and the procedures followed.  It should be noted that in international   diplomatic language, the term "we have every expectation" means "we are concerned and we will watch the situation closely." "For the past two decades, Taiwan has faced a difficult situation internationally. What has given Taiwan important credibility in democratic countries around the world has been its democratization. We fear that the current judicial procedures being used in Taiwan endanger this democratization, and endanger the goodwill that Taiwan has developed internationally."
"In conclusion: we do remain deeply disturbed by the erosion of justice in Taiwan, and express the sincere hope and expectation that your government will maintain fair and impartial judicial practices and quickly correct the present injustices.  As an editorial in the November 20th issue of the London-based Economist indicated, Taiwan is "hungry for justice", and we also hope that your government will be willing to initiate judicial reform which would move Taiwan towards a fully fair and impartial judicial system which earns the respect and admiration from other democratic countries around the world. "
Respectfully yours, " 22 Signatories of the November 4th Joint Statement
As a friend of Taiwan and someone who was both a prosecutor and defense counsel in Canada before  entering politics, I am also deeply concerned by the contents of the letter just quoted. I hope Justice Minister Wang will have substantive answers to the points raised by these 22 other friends of Taiwan. Hopefully she will also address the related serious points made in the joint statement issued on Nov. 21 by the Taiwan Bar Association, the Taipei Bar Association, and the Judicial Reform Foundation. He appears not yet to have provided substantive responses in the following:


On December 9, 1935, the Chinese Communist Party (CCP) organized a student demonstration appealing to the then Nationalist government of China to fight against Japanese aggression and for "greater freedom of speech, association and demonstrations." Demonstrators were met with over a thousand police; almost 400 of them were wounded and some were arrested. The event has since been touted by the Party as an act of honour in its leadership of the "Democratic Movement." How ironic that the CCP is now the body that obstructs the democratic movement and often resorts to violent persecution of unarmed civilians who are seeking freedom of speech, association and demonstrations.
Permit me first to stress the respect and affection I hold for the people of China. It has been a cherished memory both as Secretary of State (Asia-Pacific) for Canada in 2002-2003 and as a private citizen to visit the country several times. It was also my honour to represent in Canada's Parliament during almost 27 years many Edmontonians of origin in China. Friends taught me about the history, culture, inventions, economy, national resilience and many other strengths of their earlier homeland.
 It is similar admiration and affection for the Chinese people that compels many Canadians and other friends of China around the world to continue to speak up for institutional respect for human dignity and justice for all across China. The CCP constantly accuses its critics as being 'anti-China.' In reality, it is the Party which is 'anti-China' because of how it continues to exploit the Chinese people on myriad ways. Chinese human rights advocates and their international supporters care deeply about improving the lives and  well-being of all the Chinese people.

Bian Que

 The experience of Bian Que, the earliest known Chinese medical doctor, makes this point well. Bian Que lived in the feudal state of Cai, when he was invited to examine the feudal lord in the region. Finishing his examination, Bian Que told the other that he had a disease, which was only in his skin. The lord brushed this aside, since he then felt no symptoms, and told his staff that Bian Que was trying to profit from the fears of others. Bian Que is said to have visited the lord often afterwards, telling him each time how his ailment was becoming worse, spreading into his body, from his skin to his blood to his vital organs. The last time Bian Que went to see the lord, he looked into his bedroom and rushed out of the palace. When an attendant asked him why he had done so, he replied sorrowfully that the disease was in the marrow and had become incurable. The lord died soon afterwards.
By failing to stop gross and systematic human rights violations, or acting so often as the perpetrator of cruel abuses of the people, the Chinese party-state is acting like the lord of Cai. By allowing injustices of many kinds to spread, the un-elected governments in Beijing and the regions are working to the serious detriment of China.

Human Dignity Today

Anyone with uncensored Internet access, which unfortunately excludes 1.3 billion Chinese, can obtain the latest details about the condition of human rights across China from among other independent sources the following:
Human Rights in China:
Human Rights Watch:
Amnesty International:
 I'll highlight only a few points made in China's Great Leap, the book published earlier this year by Human Rights Watch (HRW) on the Beijing Games and the Olympian human rights challenges the country faces. It begins with a quote from Ai Weiwei, designer of the Beijing National Stadium (known as the 'Bird's Nest'). Ai refused to attend the opening ceremony, saying, "I very openly criticize the tendency to use culture for the purpose of propaganda, to dismiss the true function of art and the intellect...If you read newspapers today, you see the problems created by this structure and by the effort to maintain power. It is against everything that human society should be fighting for."
Minky Worden, the book's editor, notes that workers building the 'Bird's Next' and dozens of other Games facilities were exploited, from child labour on assembly lines to deadly working conditions on construction sites. She quotes contributor Phelim Kine on what an unfree media costs China: "The truths of corruption, public health scandals, environmental crises and abusive local authorities may be inconvenient...( but to)smother the reporting of these truths has contributed measurably to other global debacles, including recall of tainted food and toys."  A number of men and women of origin in China have told me that no-one of discernment believes anything they hear, read or see in any of China's Party-controlled media today –except the date at the top of newspapers. Worden correctly concludes that as long as the CCP is above the law China will have only "rule by law."

79% vs. 87%

The chapter on China's international image by John Kamm is insightful. For example, he points out that in a May 2007 UPI/Zogby opinion poll 79 percent of Americans said they had a favourable opinion of the Chinese people, but 87 percent had an unfavourable opinion of the Chinese government. My guess would be that a similar survey done in Canada and other rule-of-law countries today would produce very similar findings. What would the vast majority of the Chinese population tell a pollster, if they could without serious risk of consequences, about the CCP? What would they say about capital punishment being applicable in China for 68 offences?  The recent abrupt execution of Wo Weihan is only the most recent example of the lack of transparency and independence in China's judicial system.
Like many other independent observers, HRW concluded after the Games ended that they constituted a setback for human rights in China. In the year leading up to them, HRW documented extensive violations linked to the hosting. "The 2008 Beijing Games have put an end – once and for all – to the notion that these Olympics are a 'force for good,'" said Sophie Richardson, HRW's Asia advocacy director. "The reality is that the Chinese government's hosting of the Games has been a catalyst for abuses, leading to massive forced evictions, a surge in the arrest, detention, and harassment of critics, repeated violations of media freedom, and increased political repression." Richardson: "Not a single world leader who attended the Games or members of the IOC seized the opportunity to challenge the Chinese government's behavior in any meaningful way...Will anyone wonder, after the Games are over, why the Chinese government remains intransigent about human rights?"

UN Committee Against Torture

 The Chinese government should listen to the appeals of the world community and take effective action both to stop human rights violations and to punish those, including party members, who perpetrate them. One such appeal was issued last month by the United Nations Committee against Torture (CAT), which demanded that China's party-state "immediately conduct or commission an independent investigation of the claims that some Falun Gong practitioners have been subjected to torture and used for organ transplants and take measures, as appropriate, to ensure that those responsible for such abuses are prosecuted and punished." The statement was made in the committee's concluding observations on the Convention against Torture and the experience in China. It can be found at <>.
"The Government of China should do what the Committee recommends. Failure to conduct or commission an independent investigation on organ harvesting of Falun Gong practitioners would put China in violation of its international obligations under the Convention against Torture, which the Government of China freely signed and ratified", said David Matas, my co-author of a report of organ harvesting of Falun Gong practitioners. It is rare for the UN system to call the Government of China to account for its human rights violations. The Committee against Torture must be commended for its willingness to confront directly the very real human rights problems the Government of China has posed to the world.
The Committee considered the China compliance report in Geneva for three days only last month. It had a briefing session on November 6th with non-governmental representatives, which David Matas attended. The first report of Matas and myself on organ pillaging from Falun Gong practitioners was released in July 2006 and a second version in January 2007. It is available on the Internet at

The Beijing party-state, of course, rejected both the CAT report and our independent report without making a single substantive point on its side of the controversy. As the Chinese Medical Association (CMA), which has certainly not been independent from the Party since 1948, agreed with the World Medical Association earlier this year before the Beijing Olympics not to allow any further 'organ tourism' within China, the conclusions in both reports would strongly appear to have been admitted by the CMA as in reality a branch of China's regime. There are now about 52 pieces of evidence on our report website indicating that this grotesque commerce is occurring on a large scale across China.
The killing without any form of prior trial of thousands of Falun Gong citizens of China in order to sell their vital organs often to 'organ tourists' from wealthy countries is unimaginable to most people around the world today. One of Canada's national dailies, the Globe and Mail, weighed in editorially on the UN Torture report recently: "… the full police-state playbook is in evidence… People trying to come to Beijing to petition the authorities for redress of their grievances may disappear into secret centres – 'black jails' – without review by a judge. Even on death row, prisoners are subject to abusive conditions, such as being shackled 24 hours a day. And there are continued reports that organs are harvested from the executed without their prior consent, or their family's."  

Story of Ah Q

Much of the rule-of-law world calls on the government of China and the Party to follow the advice of many Chinese intellectuals, who have often questioned the lack of social justice for all and sought to alleviate the sufferings of the Chinese people under various forms of feudalism .
Consider here the True Story of Ah Q by one of Chinese most outstanding modern authors: Lu Xun. Much like now, China at the start of the 20th century, the environment in which the story is set, was facing a significant clash between traditional culture and modern open society principles. Lu Xun lamented a cultural environment obsessed with saving face, proud of its past, and accepting without question injustices imposed by authority. Lu Xun argued that what China really needed was what he called "medicine of the spirit" --social change that would adapt science and democracy.
In another work by Lu Xun, The Medicine, the author attempts to rouse those concerned only about their own personal well-being and choosing to ignore the sacrifice made by those who seek to improve the well-being of all Chinese people. (  Recent examples of such sacrifices include, among others, the remarkably courageous acts of Beijing lawyer Gao Zhisheng and human rights activist Hu Jia, who have been repeatedly deprived of their means of livelihood, detained and tortured for speaking up in defense of the victims of human rights abuses in China. Reading Lu's work, one can conclude that, were he still alive today, his message would be that international appeals are not interference from persons, NGOs and governments beyond China. Rather, voices from outside support and reinforce the fighting spirit of the brave Chinese people who have continuously stood up to repressive regimes.


 As mentioned above, Taiwan has become a beacon of hope for rule-of-law and democratic development in Asia. It is important in every rule-of-law society to have in place institutions to protect every resident, popular or not, especially in times of social stress. The Universal Declaration of human rights and its core values, including non-discrimination, equality, fairness and universality, apply to everyone, everywhere and always. The Declaration continues to affirm the inherent human dignity and worth of every person, without distinction of any kind. Independent prosecutors and courts must be vigilant in their roles-always resisting pressure from the executive, politicians or inflamed public opinion. Lawyers must be encouraged to defend anyone charged vigorously and without harassment.
The media in particular must take very seriously their important roles in building authentically open societies. To achieve meaningful democracy, journalists must be free to expose abuses by authorities without fear or favour and to avoid being used as propaganda tools to advance the interests of media owners who value party loyalty over public service and accountability by all. Political partisanship is one of the curses of an independent media.
As the world experiences its first major economic crisis in decades, the leaders of China have been asked to join a group of world leaders to collaborate in finding solutions to avoid an even more serious economic turmoil. The party-state in Beijing should not take its increased world economic and political influence as a license to continue its human rights violations. Instead, it should use such responsibilities as an opportunity to live up to the ethical leadership required of a rising world power.
At a time when it is searching for rapprochement with China, it is essential that the Government of Taiwan remains fully committed to the best practices of the rule-of-law, dignity for all as set out in the Universal Declaration and representative democracy. It should be vigilant about any tendency towards regression towards former practices.

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