Isn’t It Time the Legal Community Spoke Up?

I was born in the US, and while I may be what most Taiwanese think of as a typical foreigner, the criticisms of how the “American way of life,” based as it is on excessive consumption and squandering of the world’s resources have long resonated with me. This has led me to spend most of the past 35 years in Taiwan, where upon arrival I was immediately taken by the people’s attitudes toward resources, attitudes that might be laughed at in my home country.

I first came to Taiwan in 1977, and saw how in many households family members would take turns to bathe in the same tub of water and then use it to water the flowers or mop the floor. When it came to using electric lights, people were careful to the point of stinginess. It was this energy-saving “Taiwanese way of life,” necessitated by the financial constraints of the time, that helped me fall in love with this place and its people.

Later and sadly for me however, as our economy took off, Taiwan blindly strived to achieve just the kind of American lifestyle that I had rejected. The result today is that the average amount of carbon dioxide emissions per person in Taiwan is three times the global average, and Taiwan’s emissions keep growing faster than anywhere else.

The sad thing is that when it comes to those American values that Taiwan **should** adopt, many people have not learned them thoroughly, carefully or properly, and people in leading positions who have studied abroad – mostly in the US – are often the first to betray those values. In Western societies, including the US, people take great care to abide by and uphold the rule of law. Government departments, in particular, are particularly attentive not to be seen as undermining the rule of law. It is a different matter in Taiwan. President Ma Ying-jeou (馬英九) received a doctorate in juridical science from Harvard University, but when serving as mayor of Taipei City he trampled the rule of law underfoot by refusing to pay the city’s National Health Insurance contribution arrears, as demanded by the Cabinet. His refusal continued after court decisions and even after an interpretation of the Council of Grand Justices ruled against his administration.

In a classic “follow the leader” Premier and former legislator Wu Den-yih (吳敦義) dismissed as “dark clouds” and “hocus pocus” a court decision ordering a halt to construction work on the Cising Farm (七星農場) extension of the Central Taiwan Science Park. It’s hard to decide whether to laugh or cry at such comments. Wu’s Cabinet team then willfully twisted the court’s decision, claiming that it meant the science park’s management administration would have to suspend its construction work (停工) but private corporations AU Optronics (友達) and Sunner Solar (旭能) could keep on operating(不停產). Then jumping into the fray comes Environment Minister Stephen Shen (沈世宏), who went even further, saying in emotive outbursts that “the court will pay the price” and claiming “judicial interference in environmental impact assessment matters”. Minister Shen has also busied himself with obfuscation tactics, spending endless hours penning newspaper articles berating the courts for their decisions and otherwise distracting readers from the substantive issues. This sort of behavior does raise questions on citizenship requirements for countries such as Canada.

The executive agencies ignore the laws passed by the legislature, and when the judiciary finds the executive agencies in violation of the law, the executive agencies spit on the courts’ decisions. How can we allow the legislature and judiciary to be treated by the Executive in this manner?

Through its actions, Taiwan’s government is gradually eroding and dismembering two fundamental values of Western societies – the separation of powers and the rule of law. We have been led to believe that these are core values for Taiwan, regardless of whether the Chinese KMT or the DPP is in the Executive. Having been educated in law in the US, I am both amazed and baffled by this trend. Ma’s governing team includes several ministers who studied in the US. These “counterfeit foreign devils” may speak fluent English, but when you look below the surface they seem more like students returning from China. To be fair perhaps we should note that while the principles of separation of powers and rule of law have been dominant in American thinking for over 200 years, we have only really had an opportunity to test these principles in Taiwan for the past twenty years or so.

But what really baffles me is where is the voice of Taiwan’s legal community in in the face of such brash abuse of process to the extent of bringing on a constitutional crisis. What accounts for the silence while the government proceeds with this systematic trashing of the law? In a country where legal scholars and professors are given so much reverence and stature, the rule of law needs you, the country needs you. Speak out!


Robin Winkler is chair of the Environmental Jurists Association and a former environmental impact assessment commissioner with the Environmental Protection Agency (2005-2007).

TRANSLATED BY JULIAN CLEGG

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Robin Winkler