50th Anniversary of the Adoption of the ICCPR and ICESCR

Human Rights Forum: Legal and Tax Reform—Our Shared Responsibility

 

Reported by Yu-Ping Lin in Taipei

Experts on human rights, laws, and taxation as well as a judge and a prosecutor explore the topic—“Legal and Tax Reform, It’s Everyone’s Responsibility.”

This year marks the 50^th anniversary of the adoption of the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. Starting on Human Rights Day 2015, the UN Human Rights Office has launched a year-long campaign, stressing “Our rights, our freedoms, always.”    

On December 10, Human Rights Day, 11 nonprofit or academic organizations, including the Association of World Citizens, NGO in consultative status with ECOSOC and associated with the UN DPI, Chinese Association for Human Rights, Taiwan Association for the Study of Finance Criminal Law, etc., held a forum entitled “Principles of Fact Determinations and Human Rights Protections in Criminal Investigations and Administrative Disputes” at the International Conference Room of National Taipei University of Technology. Invited by the event organizers, Ms. Bo-Ya Chang, president of the Control Yuan, delivered a speech at the forum.  Tze-Hsiang Kao, chief secretary of the Transportation Committee of the Legislative Yuan, on behalf of the president of the Legislative Yuan; Ching-Wei Chang, deputy director of the China Times, and other prominent figures also attended the event.  Led by legal and tax experts and scholars, the participants all shouted together, “Legal and tax reform—Our shared responsibility.”  

Ms. Bo-Ya Chang, president of the Control Yuan, said that the Control Yuan has paid special attention to human rights protection because each

	At the forum entitled “Principles of Fact Determinations and Human Rights Protections in Criminal Investigations and Administrative Disputes” on Human Rights Day 2015, Ms. Bo-Ya Chang, president of the Control Yuan, delivers a speech.

month it receives over 1000 cases of petitions from the public, and over 50% of the cases are related to human rights, especially in the area of property rights.  Therefore she expects the Control Yuan to help the public on the subject of human rights protection.

Dr. Hong, Tao-Tze, vice president of the Association of World Citizens, stated, “State power, authorized by the people to work for the benefit of the people, all too often is a major violator of basic and natural human rights: with violations such as unjust criminal sentences that take away civilian’s rights of freedom, or unjustified tax collections that deprive people of their property. Both have caused huge amounts of pain and suffering by inflicting damages on a person’s reputation, dignity, faith and mental health. When violations such as these occur, the life blood of a nation’s culture is at stake and people’s rights to a life of happiness and peace are infringed upon.”  

Fortunately, the safeguarding of human rights is preserved through the passing down of cultures from generation to generation. Dr. Hong also remarked, “The efforts made by human rights crusaders in the past constantly remind us that through education, we can raise the awareness of human rights that all men are born with freedom and equality, and we should respect one another. If an individual or the regulatory regime hold love and respect at its core of development and action and conscience as the guiding principle of policies, the principles of human rights could be consolidated as a great power to make a world of human rights a reality.”

The forum was divided into two groups, one consisting of legal and tax experts and the other of youths. The moderators of three panels of legal and tax experts were Mr. Chung-Mo Cheng, former chief justice and vice president of the Judicial Yuan; Attorney Nian-Tzu Lee, member of the Presidential Office Human Rights Consultative Committee; and Attorney Yiu-Chen Su, chair of the Human Rights Protection Committee of the Taiwan Bar Association.  People in the audience said that the forum was very informative and the experts’ insightful opinions helped them better understand the issue of human rights.

 

Scholar says the Tai Ji Men case is a purposely fabricated case

 

Reported By Yu-Ping Lin in Taipei

Freedom of speech, freedom of belief, freedom from want, and freedom from fear are listed as fundamental

	Experts on human rights, laws, and taxation as well as a judge and a prosecutor explore the topic—“Legal and Tax Reform, It’s Everyone’s Responsibility.”

human rights according to the Universal Declaration of Human Rights. The idea of “building a nation where human rights are respected” has always been boasted by the current and past presidents of Taiwan when they talked about how they would govern the nation. President Ma Ying-jeou once said, “80% to 90% of the human rights violations are committed by the government.”  Six years have passed since the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted in Taiwan.  Have Taiwan’s human rights practices aligned with the United Nations’ standards?  That was the focus of the forum entitled “Principles of Fact Determinations and Human Rights Protections in Criminal Investigations and Administrative Disputes.”  

If the motive is to frame innocent individuals, then the result will definitely be wrong. 

The forum explored the principles of fact determination and human rights protection in Taiwan’s criminal investigations and administrative disputes.  To illustrate the issues in administrative laws and taxpayers’ human rights, several scholars used the ongoing Tai Ji Men unjust tax case as an example, which first started nearly 20 years ago. They analyzed the fact determination and principle of evidence in taxation and directly pointed out the chaotic situation in Taiwan’s taxation and administrative remedy system.  They considered the Tai Ji Men tax case as a landmark case to be discussed in legal education so as to truly implement the fundamental rights protected in Taiwan’s constitution and the ICCPR and ICESCR.     

Tze-Lung Chen, professor of the Department of Law of National Taiwan University, said that the Tai Ji Men case was purposely fabricated.  The motive and purpose of the fact determination is the most important in a case.  In criminal cases, if the motive is guided by conscience and fairness, then the result will not be questionable.  If the motive is to frame innocent individuals, then the result will be wrong. 

Professor Chen said that in Taiwan’s criminal cases, the concept of the separation of prosecution and trial has been widely known and accepted.  However, in the administrative courts, the concept of the separation of trial and taxation has not been established, which leads to a chaotic situation where tax officials have administrative, legislative, and judicial powers. 

He pointed out that about 20 years ago, Tai Ji Men was falsely charged with fraud and tax evasion.  He used the following analogy to explain the case. A prosecutor sent a piece of shit to both the criminal court and tax agency.  The criminal court immediately realized that what he sent was a piece of shit and returned that to the prosecutor.  However, the tax agency treated the piece of shit as gold and insisted on imposing taxes on an innocent taxpayer.  After its unjustified tax disposition has been repeatedly revoked by the courts, the tax agency still claims that it has cut the amount by 92% and insists the taxpayer to swallow the remaining 8% of the shit.  That is extremely ridiculous and outrageous!  He urged all people to defend their own rights and join the “coalition that refuses to take shit” and to fight against those government officials that force the people to eat shit.    

Yan-Sen Deng, professor of law at Soochow University said that an evil law will violate people’s human rights. For example, the reason behind the substance-over-form principle is to ensure fairness in taxation.  In fact determination, although the administrative power has its legal basis, the taxation will be unjustified when its content violates human rights. 

Judge Ying-Hua Hong of Taipei District Court said that the government inflicts two kinds of pain on its people: tax law and criminal law.  Among the pain that the judiciary brings to the people is the very slow litigation processes.  The Tai Ji Men criminal case spanned over 10 years, and its tax case has dragged on for nearly 20 years.  The victims and the taxpayers in the cases have paid a painful price for the extremely slow litigation processes.

Taxpayers pay a painful price for the terribly slow litigation processes

Experts on human rights, laws, and taxation as well as a judge and a prosecutor explore the topic—“Legal and Tax Reform, It’s Everyone’s Responsibility.”

Accountant Ming-Yi Wang used the Ta Ji Men tax case as an example to explain that the key issue in many cases is erroneous fact determination not the amount of the tax.  She said that during the administrative remedy process, Tai Ji Men dizi provided nearly 10,000 affidavits of gifts.  The National Taxation Bureau, following the decision of the Petition and Appeals Committee of the Ministry of Finance, which required the NTB to verify the nature of the red envelops to the shifu. The National Taxation Bureau designed survey forms and selected the respondents for the survey, and the survey results all indicated that the red envelops from Tai Ji Men dizi to their Shifu were gifts.  In the third instance decision rendered by the criminal court, it was held that "the monetary offerings provided by dizi to the shifu are gifts in nature and should be tax-free income under Article 4, Subparagraph 17 of the Income Tax Act" and "the uniforms needed by dizi and collectively procured by other dizi were not sold for profits" and have nothing to do with Zhang-men-ren of Tai Ji Men and his wife.   

In 2012, the National Taxation Bureau, following the resolution of the inter-ministerial meeting held by the Executive Yuan, conducted an open investigation into the matter, and the outcome of the investigation also confirmed that the red envelops from Tai Ji Men dizi to their Shifu were gifts. Since the National Taxation Bureau has admitted that Tai Ji Men is not a cram school, the basis of its original tax disposition, which treated Tai Ji Men as a cram school, has been found to be wrong, so the original tax bill should be canceled.   

 

Nian-Tzu Lee: Tai Ji Men tax case is a benchmark case

Reported by Yu-Ping Lin in Taipei

Attorney Nian-Tzu Lee, member of the Presidential Office Human Rights Consultative Committee, stated that government agencies while exercising their authority should understand that the people’s human rights should be respected.  When encountering legal problems, people usually resort to criminal litigation and administrative litigation.  Administrative agencies use their administrative authority to give commands and control and restrict the people’s rights.  If unjustified enforcement of the law occurs, that will directly harm the people’s rights like property right and the right to liberty, and the threat to such rights is ubiquitous.

Attorney Nian-Tzu Lee also pointed out that Tai Ji Men tax case is a benchmark case, which has shown insufficient protection of property right and unjustified use of taxation right by the tax authorities that has caused damage to taxpayers’ human rights.  Therefore, this case is very suitable for reflection on and review of the issue of human rights abuse in administrative litigation.

Professor Chun-Chieh Huang, also member of the Presidential Office Human Rights Consultative Committee, pointed out that when handling tax disputes, the administrative courts should truly maintain due process of law.  When the tax authorities disobey due process of law and violate human rights, the administrative courts should act as a neutral, just, and fair third party to serve their function of upholding due process of law.  He hopes that conscientious judges would correct the administrative agencies’ failure to follow the due process of law and allow human rights be implemented in each case.

Judge Chih-Hsiang Chen of Keelung District Court proposed that “Tax Speedy Trial Act” should be added.  He also proposed that the following provision be added to Article 21 Paragraph1 of the Tax Collection Act: “When a taxpayer does not agree with a tax disposition and files an administrative case, after the administrative court revokes or corrects the original tax disposition and returns the case to the original agency for it to make another disposition, and if 8 years have passed since the original tax disposition was made and the case is still not concluded, then no more tax disposition should be made regarding this case.  This also applies to cases belonging to administrative courts before this amendment is made.” He believes that this amendment will help resolve cases where unjustified tax bills have been repeatedly issued for years and help actualize taxpayers’ human rights.

Attorney Tien-Tsai Lin, President of the Legal Aid Foundation in Taipei, Kinmen and Matsu branch & Supervisor of the Association for Victims Support, stated that Tai Ji Men’s being persistent in upholding what is right and true for the past 20 years has served as a mirror, revealing the dark side of Taiwan’s tax laws.  If it weren’t for the Tai Ji Men tax case, Taiwan’s tax laws would have remained backward like those in the 18th century. He directly stated that Tai Ji Men has allowed Taiwan’s taxpayers’ human rights to advance 200 years.

 

Attorney You-Chen Su, chairman of the Human Rights Protection Committee, Taiwan Bar Association & Honorary Chairman of the  Chinese Association for Human Rights, pointed out that according to the presumption of innocence in criminal litigation, the burden of proof is not on the defendant.  That is one of the fundamental human rights in litigation.  However, in the Tax Collection Act, there is a part about the duty of cooperation from taxpayers.  This is like imposing the burden of proof on a taxpayer. That is suspicious of arbitrary use and abuse of the administrative power.  Administrative litigation should follow the spirit of “Speedy Trial Act” in criminal cases.  When a case has been in dispute for over a certain period of time, the administrative agencies should not appeal their case and the presumption of innocence should be implemented.

Prof. Keh-Chang Gee, director of the Research Center for Taxation and Public Finance Law, College of Law, National Taiwan University, mentioned that in administrative litigation, the people are the plaintiffs and the administrative agencies are the defendants, and the people do not have the burden of proof.  When doubtful that an administrative agency’s disposition is unjustified, the people only need to fulfill a simple duty of cooperation and provide a claim that the government has violated their rights, and the government should carry out its duty and start an investigation into the matter.

Prosecutor Hsi-Huai Chang of the Taiwan High Prosecutors Office argued that taxation is deprivation of the people’s property.  The tax agencies cannot see a taxpayer’s mistake, erroneous report of income, understatement of income, failure to report an income, or miscalculation as a crime.  A judge should act like a referee in a volleyball game or tennis game, fulfill his/her duty, and maintain neutrality, and confirm the findings of fact.

 

Cheng Chung-Mo: Most People Do Not Trust the Justice System

Lin Yu-Ping/Taipei

Finding the truth is crucial for human right protection

Chung-Mo Cheng, Former Grand Justice of the Constitutional Court and Vice President of the Judicial Yuan, acted as the host.

Finding the truth is crucial for human right protection! Mr. Chung-Mo Cheng, Former Grand Justice of the Constitutional Court and Vice President of the Judicial Yuan, pointed out there could be five ways to find truths; one is the truth naturally revealed by the accumulation of experiences; the second is the truth as a result of a legal proceeding; the third is from media coverage; the fourth is the truth determined by a prosecutor’s investigation; the fifth is the truth from a judge’s verdict. If 80 to 90 % of the people trust the justice system, the truths decided by the fourth way and the fifth way become trustworthy. Regretfully, nowadays, most people do not trust the justice system.

Recently the Ding-Hsin Contaminated Oil Case has caused tremendous amount of complaints and arguments in the general public; and also becomes scholars’ and experts’ most concerned subjects. Zhi-Long Chen said the food safety and regulation laws instituted by the Legislature Yuan have turned out to be the protective umbrella for profiteering enterprises. This is no human rights. He thinks that the threat to food safety has become equally scary as terrorists’ attacks. But the Legislature Yuan keeps making biased laws and regulations, leaving citizens suffered helplessly.

Yin-Hua Hong took the Zhi-Zhong Chen Case as an example. According to the Criminal Law, by serving his sentence with social service, Zhi-Zhong Chen should have been entitled to hold his official post. However, the Executive Yuan disregarded the original spirit of the law as to order Cheng’s dismiss. This is not only very regretful but also harmful to the advances of human rights.

Chun-Chieh Huang pointed out that a nation of laws and orders is a nation of justice. Procedural justice is valued by all nations of laws and orders. The enforcement of laws must also obey proper lawful procedures, so that the true value of justice can be actively practiced. Also, proper procedures are the purpose of making laws. Any administrative act that disobeys proper procedures is illegal.

Human rights should be practiced everywhere regardless how small it might be. Zhi-Xiang Chen took his own experience as an example. When he is on duty in holiday, he told the judicial police to inform him and the clerk of the court immediately, so that he can open a court session to prevent the suspect from being held in custody for extended time. He said the first article of the German Basic Law rules that human dignity shall not be infringed. Respecting and protecting the people is the duty of the nation. Laws and regulations are to protect human rights. If the laws are unable to protect human rights, the administration, the legislation, and the justice all have to be reviewed and improved.

Dr. Wu Ching-Chin, the Chairman and Associate Professor of the Department of Law of the Aletheia University, took the New Taipei City Elementary School Nutrition Lunch Case as an example, in which several school principals were indicted for corruption. Wu pointed out, although the judge thought there were contradictions in the witness’ testimony, the judge still decided that the bribery was true and the amount of money involved in the bribery was not important. The judge even decided that an estimated average value be taken as the amount of money in the bribery. The judge’s decision was so surprisingly amazing.

Wu said, when a major criminal case happens, the law enforcement officers often choose to release information to the media in an attempt to create a public opinion for the case. When the public opinion becomes discretionary evidence, the judge’s competence will be questioned if the judge’s verdict is against the public opinion. When the justice system insists not on the principal of presumed innocence and the principal of evidence, but the principal of imprecise rules of thumbs, injustice case will be inevitable.

 

The Youth: The Government Should Have the Courage to Correct Its Mistake

 

Lin Yu-Ping/Taipei

The conference room is packed with hundreds of people from different walks of life who care about human rights development.

On the youth forum of the United Nations Human Rights Day, the youth invited to attend the conference all put forth suggestion for the nation from their observation of the current events.  Those who first have the right to vote call for the presidential candidates to practically carry out cultural preservation.  The organization like Ti Ji Men, which devotes itself to cultural propagation, especially deserves to be preserved.  Don't let the national cultural spirit all go extinct.  Besides, some students also analyze the eye-catching injustice case.  They also advocate all the fellow citizens to arouse their awareness, hoping the government to show clear conscience, exert power, have the nerve to revise the mistake immediately, and to establish the government's accountability and credit.

Zhen-Huang Lin indicated that the development of law should focus on human right protection. In instances where the application of law is somewhat dubious, the injunction should be made in the favor of people.  Qiu Chen expressed that although the long-used practical taxing principles in our tax regime is equivalent to the economic observation law in Germany. However, our imitation is a failure and it is not exactly the same.  It leads to the unlimited expansion in the power of the authorities.

Wei-jing Cai pointed out that the current condition of tax collection in Taiwan is flawed. Unjustified and unjust tax bills could come out of nowhere. Statistics Bureau data shows that tax collection reaches new high. However, when the average wage is coming down amid the downward economic cycle, how can possibly tax collection reach new high? Apparently taxing is a way to deprive people's property.  There should be stricter regulations to restrict the power of the tax authorities and ensure proper procedures.