According to a report in the Chinese-language Liberty Times (the Taipei Times’ sister newspaper), Chinese student Zhou Hongxu (周泓旭), who was sentenced to 14 months in prison for contravening the National Security Act (國家安全法), ended up not having to serve any jail time as his sentence was offset by time served in detention while awaiting the final verdict.
However, as he was still implicated in another case involving national security, the courts prevented him from leaving the country, and this order was on Sept. 23 extended by a further eight months.
Although Zhou was not allowed to leave the country, neither was he forbidden from moving around freely within the country, leaving many to ask why, if he was involved in a national security case, there were no restrictions placed on his movements.
Article 18-1, paragraph 1 of the Statute Governing the Relations Between the People of the Taiwan Area and the Mainland Area (兩岸人民關係條例) states that the National Immigration Agency has the power to temporarily place Chinese citizens considered a threat to national security or social order, prior to deportation, in detention centers, and this could apply to Zhou.
The problem with this is that the permissible detention period has a limit of 40 to 50 days and, in line with the Council of Grand Justices’ Interpretation No. 710, any extension must first be approved by a judge. In cases where it is unknown when they would be concluded, this requirement is inherently flawed.
More importantly, detention is intended to be in preparation for deportation, and there is a clear contradiction here when applied to a defendant awaiting trial. It is also because of this that detention does seem to be the optimum method of constraint for a defendant awaiting trial, especially when the intention is to prevent them from gathering intelligence.
The problem is, Zhou’s case involves the crime of developing an organization that poses a threat to national security, which according to Article 2-1 of the National Security Act, requires a custodial sentence of no more than five years.
While five years is not a light sentence, neither is it a heavy one, and since the case is already in the courts, in line with the principle that detention is used only when necessary, detention could be substituted for several other methods, such as restrictions on overseas travel or on residence, or entrusting the accused to the custody of a third party.
Of these, two options — overseas travel restrictions and limits upon residence — cannot fulfill the requirement of 24-hour surveillance, and therefore do not address the problem of possible flight risk or unrestricted movement.
The solution to this was to bolster the options available to judges to use to supplement or replace detention, adding as many as eight measures during amendments last year to Article 116-2 of the Code of Criminal Procedure (刑事訴訟法).
In Zhou’s case, to prevent him from going wherever he pleases and potentially gathering intelligence, Measure 4 — “appropriate monitoring by technical equipment” — or Measure 8 — “other matters the court considers appropriate” — could be used to help mitigate the surveillance loopholes caused by the lack of detention.
Unfortunately, under an amendment passed in July last year, the Judicial Yuan was given until Sept. 1 of this year to announce a viable replacement to electronic monitoring, but the required equipment and supplementary measures have yet to be finalized.
Until this is done, there will still be problems surrounding alternatives to detention.
Wu Ching-chin is an associate law professor at Aletheia University.
Translated by Paul Cooper
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