From Li Ming-che to Lee Meng-chu: Cross-Strait Personal Liberty Lacks Protection

Taiwanese citizen Lee Meng-chu went missing for three weeks after entering China on August 19. It was only recently that Taiwan Affairs Office spokesperson Ma Xiaoguang claimed he was being investigated in connection with a case, recalling the experience of another Taiwanese citizen, Li Ming-che, in China.

What are the similarities and differences between the two cases? First of all, neither of these two Mr. Lis is an ordinary voter; the former is an advisory committee member for Fangliao Township in Pingtung County, while the latter is a volunteer for the NGO Covenant Watch and a program manager at Wenshan Community College. Yet, both mysteriously went missing upon entering China, only for Chinese authorities to belatedly claim after some time that they were detained and investigated for "suspected criminal activities endangering national security."

The difference lies in the fact that Li Ming-che has been convicted of "subversion of state power" by the Intermediate People's Court of Yueyang City, Hunan Province, China, and sentenced to five years in prison. He is currently serving his sentence and suffering inhumane treatment. Meanwhile, Lee Meng-chu seems to have a glimmer of an opportunity to escape the cage.

Deliberate Isolation of Detainees

This is an opportune moment for us to properly examine how Chinese law protects personal liberty! According to Article 37 of the Chinese Constitution: "The personal freedom of citizens of the People's Republic of China is inviolable," and "No citizen may be arrested except with the approval or decision of a people's procuratorate or the decision of a people's court, and shall be executed by a public security organ."

Paragraph 2 of Article 85 and Paragraph 2 of Article 93 of the Criminal Procedure Law both stipulate that after a public security organ detains (which is a criminal coercive measure in nature) or arrests a person, it shall notify the family members within 24 hours. The latter part of Article 97 of the Law on Penalties for Administration of Public Security stipulates that where a public security organ decides to impose administrative detention (which is administrative punishment in nature), it shall promptly notify the family members of the person penalized.

However, the aforementioned Article 85, Paragraph 2 of the Criminal Procedure Law leaves a "backdoor" clause that the government can toggle at will: in cases of "suspected crimes of endangering national security or terrorist activities where notification may hinder the investigation," family members of the detainee are only notified after "the circumstances hindering the investigation have disappeared." Consequently, when the Chinese government arrests domestic human rights lawyers and human rights workers, it also notifies their families only after they have been "missing" for a very long time. Such a practice is intended to deliberately isolate detainees entirely from the outside world (their families) and subject them to psychological suffering, which likely violates the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment signed and ratified by China.

Failure to Follow Agreements Shows Utter Lack of Credibility

Taiwan and China are two independent "legal jurisdictions" with their own systems of legal norms. When a person from one side is suspected of a crime within the territory of the other, it may involve "inter-jurisdictional (international) judicial assistance" matters such as service of documents, investigation and evidence collection, transfer of criminal proceeds, transfer of actors (extradition), notification of family members, and humanitarian visits. To this end, Taiwan's Straits Exchange Foundation and China's Association for Relations Across the Taiwan Straits signed the Cross-Strait Agreement on Joint Crime-Fighting and Judicial Mutual Assistance in 2009. Item 12 of the aforementioned agreement, "Humanitarian Visits," stipulates: "Both sides agree to promptly notify the other party of important information such as persons being restricted in personal liberty, dying of non-natural causes, or suspected of dying of non-natural causes, and to facilitate family visits in accordance with their respective regulations."

Subsequently, Paragraph 2 of Article 3, "Investment Treatment," of the Cross-Strait Bilateral Investment Agreement stipulates: "Both sides shall strengthen the protection of the personal liberty and safety of investors and related personnel in investments, fulfill the notification obligations related to personal liberty within their respective prescribed time limits, and improve existing notification mechanisms." The specific practice is: when the government of one side restricts the personal liberty of personnel from the other side, it shall promptly notify the designated business authorities of the other side in accordance with the liaison mechanism established by the Cross-Strait Agreement on Joint Crime-Fighting and Judicial Mutual Assistance, and shall shorten the notification time as much as possible.

If the family members of the parties concerned make inquiries to the business authorities of the other side through the business authorities of one side, the other side shall reply to the inquiry results as soon as possible.

However, judging from the experiences of Li Ming-che and Lee Meng-chu, during the period when the two Mr. Lis were "missing," although our government repeatedly inquired with the relevant Chinese departments, the Chinese side neither notified our side or their families nor gave a complete explanation of the detention location, the laws and regulations suspected of being violated, or the period of restriction of personal liberty. Evidently, they failed to fulfill their obligations under the agreement and possess utter lack of credibility.

Effective Defense by Lawyers is Essential

How can they be rescued? According to the latter part of Article 86 and the latter part of Article 94 of the Chinese Criminal Procedure Law, if a public security organ finds that a person should not have been detained, or a people's court, people's procuratorate, or public security organ finds that a person should not have been arrested, the detained (arrested) person must be released immediately and issued a release certificate. Article 163 of the same law stipulates that during the investigation process, if the people's procuratorate finds that criminal responsibility should not be investigated for a criminal suspect, it shall dismiss the case; if the criminal suspect has already been arrested, they shall be released immediately and issued a release certificate. Paragraph 1 of Article 177 and the latter part of Article 178 of the same law stipulate that if a criminal suspect has no criminal facts, the people's procuratorate shall make a decision not to prosecute; if the unprosecuted person is in custody, they shall be released immediately.
Since Lee Meng-chu's case has not yet been prosecuted, as long as China is not deliberately suppressing President Tsai Ing-wen's re-election campaign or retaliating under the pretext of the Taiwan government's support for Hong Kong's anti-extradition protests, there is still some room for turnaround, provided he can obtain an effective defense by local lawyers to protect his litigation rights and legitimate interests, and clarify the facts of not being involved in crimes.

However, the author admits with regret here that based on the case experience of rescuing Li Ming-che, although the Taipei Bar Association issued a public statement demanding China release Li Ming-che without charge, and the Judicial Reform Foundation dispatched a specialist to accompany his wife, Li Ching-yu, to China for negotiations and to observe the trial, these efforts were ultimately well-intentioned but fell short of what was needed.

An Appeal to the Taiwan Bar Association for Righteous Assistance

However, just a few days after Lee Meng-chu went