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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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