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TAIWAN: Transitional justice and the case of Tai Ji Men, an unsolved issue

Ms. Jacklin Chang , Graduated Student, Department of Political Science, Volunteer of Tax & Legal Reform League
Hello everyone, I am a graduate student in the Department of Political Science and a volunteer in the Tax & Legal Reform League. Since I was a college student, tax and legal reform and transitional justice have always been topics of concern to me. Transitional justice has now become a human rights indicator and an important issue for countries around the world. Just like the German Nazi concentration camps, the South African genocide, and the Gwangju incident in South Korea, Taiwan has also gone through the 228 Incident, martial law and white terror. With countless sacrifices and struggles from democratic predecessors, Taiwan finally became a democratic and free country.
President Tsai, Ing-wen of Taiwan listed “transitional justice” as one of her key political views during her election in 2016. Later, the Legislative Yuan passed many bills and established agencies to fully carry out transitional justice work. However, Taiwan’s transitional justice has a big problem, because our “Act on Promoting Transitional Justice” actually stipulated that only persecution cases that occurred from 1945 to 1992 should be handled. But we all know that it is impossible for a country to become democratic, free and human rights-guarding overnight. Taiwan has also experienced a lot of human rights persecution after 1992. For example, in 1996, Taiwan’s government initiated a wave of religious anti-criminal campaigns. Many civil organizations were innocently victimized as a result of political rectification, and Tai Ji Men was the biggest victim. Many of the tax victims supported by the Tax & Legal Reform League are almost persecuted by the improper legal tax system after 1992. For example, Professor Zeng Jian-yuan was taxed and robbed by the National Taxation Bureau when his house caught fire, and lawyer Huang Wen-huang was enthusiastic about doing charities but he was taxed heavily. They are still suffering today. In the face of these bloody persecutions, are we supposed to turn a blind eye just because these event did not happen during the stipulated period    of “Act on Promoting Transitional Justice”?
Moreover, Taiwan’s legal tax system has not really been lifted from martial law. The tax officials have too much discretion—tax bills can be issued without evidence; legislation and rules can even be set up by themselves. In addition, the judicial remedy system has almost failed. Taiwanese have only a 6% winning rate in tax litigation. It is almost the same as in the authoritarian period. Therefore, all walks of life in Taiwan urgently call for legal and tax reforms. So far, more than 96% of all village chiefs in Taiwan have joined endorsed the protection of taxation human rights. However, to this day, a small number of illegal officials continue to cause countless persecution of false cases, which is definitely a great irony compared with President Tsai’s comprehensive promotion of transitional justice!
As a volunteer of the Tax & Legal Reform League, the Tai Ji Men case has always been a human rights persecution that we are very concerned about. Last year when we learned that the Taiwanese government was going to illegally auction Tai Ji Men’s land, I followed many experts, scholars, Tai Ji Men dizi (disciples) and other citizens to express our anger and dissatisfaction on the streets. My classmates spend their summer vacation going out to eat, drink and have fun. During my summer vacation, I went to the Administrative Enforcement Agency and the Ministry of Finance to protest every day. To be honest, I was so tired that I wanted to cry every day. We had to endure the wind, the sun, and the rain, but none of us gave up. We still expect Taiwan’s democracy and the rule of law to solve the problem, and we still believe that government officials have a little conscience and are willing to solve people’s suffering. However, so many of us have shouted our demand for nearly two months while the officials regarded us as the air and turned a blind eye. None of them were willing to come out to communicate with the people, and they eventually arbitrarily auctioned off Tai Ji Men’s land illegally.
 
I will never forget the auction day. Officials of the Administrative Enforcement Agency immediately fled the scene after announcing that “the auction was completed in accordance with the law.” They dared not face the angry crowd at all, not to mention any kind of dialogue or response. Afterwards, they even issued news asking people to “be rational,” “abide by the rule of law,” and “not to interfere with the execution of official duties.” I’d like to ask, who is it that undermines the rule of law?
 
As early as 2007, Tai Ji Men was declared not guilty and tax-free in the third instance of the Supreme Court and even received compensation from the government. The state also certified the case as a “significant human rights violations” case. After twenty-five years, there is still no way to redress a case that was recognized innocent by the government and the five Yuans, not to mention that the officials who violated the law and abused power in this case were not punished. The officials protected and covered for each other and even got promoted all the way, ignoring the infringed human rights and even violating the human rights values that President Tsai has pursued since she took office. Isn’t this the biggest joke as a democratic country? I happen to be 25 years old this year, meaning that how old I am is how long the persecution has lasted. Many people have since passed away before justice came.
Finally, I would like to tell a story about the German prosecutor Fritz Bauer.  Germany has experienced the Nazi Holocaust, so it attaches great importance to transformational justice. But in the beginning, the whole country, especially the national public service system, tried to cover up and forget the history of persecution. At that time, only Fritz Bauer, regardless of everyone’s opposition, fought against the entire country alone, trying to dig out the historical truth and blame the perpetrators, only to pursue transitional justice. His story was made into an amazing movie, “The Labyrinth of Lies”, in which there was a sentence that is still engraved in my heart, “We can’t create a paradise on this land, but we can prevent this land from becoming a hell.” Today, I want to send this sentence to President Tsai and all Taiwanese politicians: listen to your conscience, don’t be kidnapped by a few illegal officials; as long as it is good for the people of Taiwan, you should do it bravely and save people from suffering. What’s more, former legislator Xu Tian-cai once stated, “it only requires a very small amount of wisdom and courage to resolve Tai Ji Men case. This case is the key of testing whether the Tsai Ing-wen government’s transitional justice is a success or not.”
Taiwan has always been regarded as a country of democracy, rule of law, and human rights in Asia. Last year, the National Human Rights Commission was established to align Taiwan’s human rights with international standards. Therefore, I still believe that the Taiwan government is capable of solving the problem. The key lies in whether or not the government officials are willing to show their conscience. Not just Taiwan, many countries in the world have suffered serious human rights violations. Every one of us is a world citizen. I hope that everyone can uphold their conscience, respect human rights, help each other, cooperate, and be united and tolerant so that the world will move towards peace and everyone will be happy.




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TAIWAN: Abusive tax collection: The case of Tai Ji Men

A legal analysis presented at the 6 April webinar “The UN International Day of Conscience” organized by CESNUR and Human Rights Without Frontiers

 

By Ms. Charlotte Lee, Human Rights Observer of the Association of World Citizens (Taiwan), Taiwan Lawyer

 

I am a lawyer practicing commercial law in Taiwan and I am also a human right observer from the Association of World Citizen Taiwan. My organization is associated with the UN DPI. As the human right observer, we have observed many victims are suffering from abusive tax collection by the tax authority in Taiwan. The most noteworthy case is the Tai Ji Men tax case.

 

Beginning from 1996, the Tai Ji Men case is one of the longest-standing cases of taxpayer’s human rights violations. However, to this day, this case, which has drawn the attention of Taiwan and international scholars, human rights, religious and cultural group leaders, still hasn’t received effective remedy after 25 years. At today’s forum, I would point out five aspects which are serious violations of two international human right covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Right (ICESCR).

 

First, The Government has violated the principle of equality and nondiscrimination

Since the founding of the Tai Ji Men Qigong Academy in 1966, Dr. Hong, Tao-Tze, Zhang-men-ren of Tai Ji Men were taxed only for the six years listed in Prosecutor indictment when Tai Ji Men was caught in the crossfire during the religious crackdown. It is a traditional custom for a disciple to offer a red envelope to shifu to show the respect and gratitude in the martial arts and religious communities. In Taiwan, no master of the martial arts menpai or religious groups was taxed for accepting monetary gift from disciples or followers.

 

In the Tai Ji Men case, the tax agency treats the red envelopes from dizi to their shifu differently for 6 years from other years without any legal basis and objective reason. And the red envelopes were treated differently for Tai Ji Men from those for other martial arts or religious groups. This violated the principle of equality and nondiscrimination under Articles 2 and 26 of the ICCPR, Article 2 of the ICESCR.

 

Second, The Government has violated the freedom of thought, brief, and religion

According to the Article 18 of ICCPR and General Comment on No. 22 of the ICCPR, people’s right to freedom of thought, belief, and religion should be fully protected, interpreted in the broadest sense, and not be limited to traditional beliefs or religions. The committee also emphasizes that people’s inner thoughts and beliefs and the freedom to follow or practice the religion or belief of their choice are absolutely guaranteed, and the government must not restrict or infringe on these rights.

 

Tai Ji Men is an ancient menpai of qigong, martial arts, and self-cultivation that carries forward Taoist philosophy. Tai Ji Men dizi agreed with Zhang-men-ren’s idea of purifying people’s hearts and decided to follow him to practice qigong and cultivate their hearts. They followed an ancient ritual and created the shifu-dizirelationship. To show their gratitude to and faith in their shifu, they voluntarily offered monetary gifts to him when they were officially accepted as a dizi and on major traditional holidays. This constitutes a necessary component of the realization of an inner belief or religion, which is protected by the ICCPR and ICESCR and is absolutely inviolable.

 

The ICCPR and ICESCR require the government to respect, protect and implement the freedom of thought, belief, and religion. The taxation bureau has failed to respect or protect Tai Ji Men dizi’s rights. On the contrary, it has discriminated against Tai Ji Men. Their freedom of thought, belief, and religion has been seriously violated.

Third, The Government has violated Tai Ji Men members’ right to cultural engagement

Tai Ji Men is an organization of qigong, martial arts, and self-cultivation that carries forward Chinese culture of qigong and martial arts. It aims to improve global citizens’ physical, mental, and spiritual health. Over the past few decades, Zhang-men-ren has led his dizi to participate in thousands of cultural performances involving qigong and martial arts for public welfare at home and abroad. Tai Ji Men is not only an organization of traditional culture but also a cultural group for public welfare.

 

Offering red envelopes is part of the traditional custom. It’s about carrying forward an aspect of traditional culture–showing respect to one’s master and the master’s teaching. That also shows Tai Ji Men dizi’sagreement with their shifu’s idea of promoting traditional culture. That is not only their freedom of thought and belief, but also their right to choose to engage in a certain cultural life. However, the taxation bureau treated the bond between the shifu and his dizi developed in this cultural engagement as a business transaction. That has distorted the cultural custom and belief. The taxation bureau once even imposed a travel ban on Zhang-men-ren, seriously violated his freedom to preach and promote culture.

 

According to Article 15 of ICESCR and General Comments No. 21, the government needs to actively protect its people’s right to engage in cultural life without discrimination. Taiwan’s taxation bureau completely goes against the spirit of the ICCPR and ICESCR, seriously violating Tai Ji Men shifu’s and dizi’s rights to cultural engagement. The cultural heritage and development is hindered because of the unjust tax collection practices.

 

The next, the Government has violated Tai Ji Men members’ right to a fair trial

In 2019, the taxation bureau finally corrected the taxes for the red envelopes to zero for 5 years. However, it did not correct the taxes for the red envelopes to zero for 1992, which was no different from other years. The court decision for the taxes for 1992 was obviously against the requirement of a fair trial. When the case was heard by the Tai-Chung High Administrative Court, the judges had completed all evidence investigation preparation procedures. The judge was transferred to the Supreme Administrative Court. When Zhang-men-ren appealed his case, the Judge again handled the case and ruled against Zhang-men-ren. Since the judge completed the entire substantive preparation procedures in the pre-trial, she was supposed to recuse herself, but the Judge didn’t.

 

The people has right to litigation. According to General Comment No. 32 on Article 14 of the ICCPR, everyone has the right to a fair and open trial. Qualified, independent and unbiased courts are absolute requirements. The recusal doctrine, people’s right to appeal to a higher court, are all essential to a fair trial. The General Comment require that a judge shall not be influenced by his personal prejudice when making a judgment, shall not pre-determine his judgment in the case. Additionally, the court is also required to be fair when viewed by a reasonable observer. Therefore, the court decision for the taxes for 1992 seriously violated the requirement of a fair trial under the ICCPR, and thus it was an invalid decision in the first place.

 

Finally, The Government has failed to fulfill its duty to provide effective remedy

According to Article 2 of the ICCPR, the government has an obligation to ensure that its people’s rights should be effectively remedied when their rights are violated. General Comment No. 31 pointed out that the government should immediately take measures, such as legislative, judicial, political, and educational measures, to fulfill its legal obligations. However, in the Tai Ji Men tax case, Tai Ji Men Shifu and dizi have spent immeasurable energy, money and efforts to seek remedy for this fabricated tax case that has dragged on for 25 years but we have seen the government connive at the taxation bureau’s overriding the powers of other government agencies for over two decades. This has violated the government’s obligation to provide effective remedy.

 

The Tai Ji Men case have revealed many problems in Taiwan’s legal and tax systems. In Tai Ji Men shifu and dizi’s journey of seeking remedy for the wrong final judgement for the taxes for 1992, we have seen the major flaws in the retrial system and the mechanism of reopening a tax case. The retrial is subject to the statutory limitation of 5 years. And the prohibitively high threshold make retrial difficult to be approved. The reopening of a tax case is not feasible in practice as tax authority has made it virtually impossible to reopen a case. The design of the system is like shooting a wrongfully charged criminal even though all evidences pointing to innocence of the person. This is the outright and gross violation of human rights. The government shoulders the undeniable responsibilities to solve the case without any further delay and relevant government organizations should examine the flaws of the system to ensure fair retrial and reopening of a case.

 

Taiwan government has made ICCPR and ICESCR domestic laws. Therefore the government is obligated to offer effective remedies according to the ICCPR. We urge President Tsai, President of Control Yuan, Chen Chu, and the national human rights committee to look seriously at the truth, listen to the calling of conscience, and realize human rights protection so that no more unjust case needs to happen again in Taiwan.

 


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