迷失的聯繫：改善兩岸關係顯然已犧牲台灣的公民自由　■孔傑榮投書（雲程譯）

【Comment】

It is beyond my understanding why Professor Cohen write to the editor of South China Morning Post instead of having a phone call to his student Ma now the President of ROC?
What Ma’s doings recently may have concequences internationally as belows,
1. What will happen if the pro-US Taiwanese lost their human rights and democracy and feel betrayed, again? Do Taiwanese become anti-US as Chinese are now?
2. What is an anti-US Taiwan in the West Pacific rim means to the US?
3. Can the US encourage Beijing to walk straight forwad in the path of democracy if democratic Taiwan no longer exist?
4. Will China have more reasons to control her people then ever and threaten its neighboring countries?
5. Can the US ever say that the democracy is a superior system?

若有人不懂，容我再補一句「天地君親師」！
一如往常，若有翻譯錯誤或不精確之處，敬請不吝指正。

迷失的聯繫：改善兩岸關係顯然已犧牲台灣的公民自由　■孔傑榮投書（雲程譯）

上週，北京的兩岸首腦陳雲林至台灣進行歷史性訪問，並簽署四項實用性協議，輿論焦點集中於人權與政治等議題。部份議題為自由社會中政府對抗議民眾的回應。其他議題則與前任與現任政府領袖的貪瀆疑案進行公平調查有關。

中國人承認保護來使已有近三千年的歷史。在秦帝國成立之前，相互征戰的封建國家都保證來使的安全。此等保護在國與國的合作上也是必要的。

在台南警方無法保護陳先生的副手，馬英九政府本應在陳雲林訪台期間提供更佳的保護。雖然警方無法避免陳雲林因大量抗議群眾而被困八小時，他們確實在飽受壓力的一週內保護了陳雲林的人身安全。

為此，馬政府逾越了自由社會的限制，禁止和平的抗議群眾，不准其展示台灣【譯註：其實是中華民國】與西藏的旗幟。從示威者手中沒收旗幟，勒令關閉播放台灣歌曲的商店，以使訪客感受不到抗議。有一些警察暴力，雖然有時是回應示威群眾的暴力挑釁。

警察的濫權，甚至於也被陳雲林的支持者所激怒。在競選期間宣示將支持修改集會遊行法，以廢除「事前報備制」的馬先生，應建議修法禁止近日警察所發生不民主的行為，並下令加強警察服從法律的訓練。要注意的是，民主進步黨主席蔡英文領導大規模示威遊行不僅呼籲政府應正視警察濫權，也重新檢視民進黨無法規範示威群眾。若民進黨要實踐其民主反對者的角色，不得退返為街頭戰士的政黨。

部份台灣與外國評論者將陳雲林的訪問視為另一個民主政府的重要議題，即對現任與卸任官員疑似貪瀆時能獲得公平的調查起訴。評論者指出對三個前民進黨政府官員進行嚴重逮捕、收押禁見案例。這些案例暗示了，只起訴民進黨而國民黨官員則被豁免。他們也說絕大多數民進黨的嫌疑人被收押禁見而並未經法庭審視拘留的合法性，而檢察官洩漏不利於涉嫌人的資訊給媒體，而不給他們有機會反駁「媒體審判」。

這些事件讓人質疑司法的政治中立性，讓人質疑對民主政治最重要的能有公平與公開審判的「無罪推定」前提，以及其他正當法律程序所需的要素，讓人質疑將喚醒「實施戒嚴的黑暗時期」（1947-1987）不義程序的惡魔。目前尚不清楚評論者所稱「選擇性起訴」是否真確。近日的逮捕，也許僅反應了民進黨過去八年執政時大規模的腐敗，貪瀆的層級據說達到前總統陳水扁與其家人。

奇怪的是，雖然在陳水扁政府時期，檢察官都曾起訴民進黨與國民黨要人，一些顯著的國民黨目標即便監察院有成篇纍牘的卷案，都被忽略不辦。馬先生應該成立由公正專家所組成的委員會重新檢視這些訴案。

還不太顯著的情形是，近日拘留民進黨要人是否未接受法院庭訊，或者其受審的權利被剝奪。此外，根據法律，若嫌疑者有湮滅證據之虞，法院羈押判決的期間可長達四個月。但是，就此「起訴前的懲罰」如此粗糙，同時對【譯註：被告之】正當防禦權利所造成的障礙而言，此權力應當盡量不行使。

當然，立法院或我所建議成立的委員會，在此應重新檢視遊行的立法，以在「貪瀆對民主政府的威脅」以及「羈押禁見對公民自由的威脅」之間求取新的平衡。

對於偏私的洩漏案情給新聞界一事，似乎是評論者最理直氣壯的控訴。這種洩漏案情的事情，也在許多國家發生，確有其事卻不允許在民主國家出現。

孔傑榮，紐約大學「美國與亞洲法律學院」共同主任、「外交關係協會」資深助理學人。

http://www.cfr.org/publication/17748/ties_that_blind.html?breadcrumb=%2Fregion%2F

http://blog.xuite.net/lgb2007msu/2008study/20749909

http://roserylovely.blogspot.com/2008/11/blog-post_14.html/

“Ties that Blind: Improved cross-strait relations appear to have come at a cost to some civil liberties in Taiwan” by Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies

November 13, 2008 South China Morning Post

Last week's historic visit to Taiwan by Beijing's cross-strait chief, Chen Yunlin , which culminated in four useful agreements, focused attention on issues of human rights as well as politics. Some issues concerned the proper government response to public protests in a free society. Others involved fair investigation of former and present government leaders suspected of corruption.
Chinese have recognised the importance of protecting foreign envoys for almost 3,000 years. The feudal states that contended for power before establishment of the Qin dynasty reciprocally assured the personal safety of their emissaries. Such protection has continued to be indispensable to inter-state co-operation.
After police in Tainan failed to prevent an assault on Mr Chen's deputy, president Ma Ying-jeou's government was obligated to do better during Mr Chen's visit. Although police could not prevent Mr Chen from being trapped in a hotel for eight hours by a huge mob of protesters, they did defend him against bodily harm throughout a stressful week.
In doing so, they went beyond the limits of a free society, forbidding peaceful protesters from displaying Taiwanese and Tibetan flags, confiscating flags from demonstrators, closing a store that played Taiwanese songs and seeking to minimise the visitors' awareness of the protests. There were also incidents of police brutality, albeit sometimes in response to violent provocations by demonstrators.
The police misconduct even outraged many local supporters of Mr Chen's visit. Mr Ma, in addition to implementing his campaign pledge to sponsor revision of the Assembly and Parade Law to eliminate protesters' need for advance official permission, should recommend amendments prohibiting the kind of undemocratic police practices that recently occurred and order training designed to enhance police compliance with the law. It is encouraging to note that Democratic Progressive Party chairwoman Tsai Ing-wen, who led the massive opposition demonstration, has subsequently called not only for a government review of police misconduct but also for a re-examination by her own party of its failures to maintain order among its demonstrators. The DPP, if it is to fulfil its essential role as democratic opposition, must not degenerate into an army of street fighters.
Some Taiwanese and foreign critics took the occasion of Mr Chen's visit to call attention to another crucial feature of democratic government - the fair prosecution of current and former officials suspected of corruption. The critics voiced three serious complaints about recent arrests and incommunicado detentions of prominent DPP figures who have served as government officials. They imply that the DPP is being singled out for prosecutions while corruption among Kuomintang leaders is being ignored. They also claim that: most DPP suspects have been held incommunicado without a court examination of the justification for their detentions; and that prosecutors' offices have been leaking detrimental information about the suspects to the media while denying them knowledge of the leaks and a chance to refute the "trial by press".
These practices, it is said, bring into question the political neutrality of the judiciary, and the presumption of innocence and other elements of due process required for the fair and open trials essential to democracy, raising the specter of the unjust procedures of "the dark days of martial law" (1947-1987). It is not clear whether critics' claims of "selective prosecution" are well founded. Recent arrests may simply reflect massive corruption by the DPP, which dominated executive government for the past eight years - corruption that allegedly reached as high as former president Chen Shui-bian and his family.
Oddly, although during the Chen administration some prosecutions were brought against both DPP and KMT figures, some obvious KMT targets were overlooked despite reportedly thick dossiers compiled by Control Yuan investigators. Mr Ma should appoint a commission of impartial experts to review such prosecutions.
It does not appear that any of the recently detained DPP figures were denied a court hearing or their right to counsel. Moreover, there is a legislative basis for the courts' decisions to detain them incommunicado for up to four months of investigation if there is a reasonable basis for believing that the suspects might otherwise falsify evidence. Yet, in view of the harshness of this pre-indictment sanction and the obstacles it creates to mounting an adequate defence, it ought to be invoked rarely.
Certainly, the Legislative Yuan, or the commission suggested here, should re-examine legislation to strike a new balance between the threat of corruption to a democratic government and the threat of incommunicado detention to civil liberty.
The charge of biased prosecution leaks to the press seems to be the most straightforward of the critics' complaints. Such leaks, which occur in many countries, do appear to have taken place and cannot be allowed in a democratic system.
Jerome A. Cohen is co-director of NYU's US-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations

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