Joyce Huang is Right, Tsai Ing-wen’s English is Poor

When Will We See the End of “Dinosaur Judges?”
Written by Professor Fung Hu-hsiang
Translated by Bevin Chu
January 30, 2013
Taipei, China

Translator’s Note: The nine year long witch hunt waged by the “justice system” on Taiwan against Fung Hu-hsiang confirms that “democracy” is no guarantee of “freedom and human rights.” Democracy is not government of, by, and for the governed. Democracy is government of, by, and for the governors.

The year 2012 was the Year of the Dragon. The year 2013 is the Year of the Snake. The snake is commonly known as a “little dragon.” To the Chinese people, dragons are symbols of good fortune. From the earliest “Book of Changes,” dragons have represented stages in a larger process, the so-called “da zai qian yuan, wan wou zi she, nai tong tian.” The dragon represents the active and creative Spirit of Life. That is why in Chinese culture the dragon has long occupied a position of respect.

Dinosaurs however, represent the opposite. They represent dull-wittedness, obliviousness, and rigidity. So-called “dinosaur judges” represent the defiance of common sense. They represent monsters who indiscriminately harm innocent people. Today’s judiciary has many serious and dedicated “dragon judges” presiding over court cases. Unfortunately, it also has many “dinosaur judges.” These self-appointed gods abuse their authority, and give judges as a whole a bad name.

This author once sued Chen Shui-bian for defamation. As a result, Chen served eight months in prison. This author opposes Taiwan independence and champions reunification. His position is clear. As a result, he is deeply hated by advocates of Taiwan independence. He is a thorn in their side. As a result, he has become the victim of a major injustice. His case has dragged on for nine years. This shows just how vindictive these dinosaur judges can be. They have turned the justice system into what Taiwanese industrial magnate Robert Tsao called a “meat grinder.” They have turned the justice system into a “Flying Guillotine” that mutilates the innocent.

On January 17, 2012, the China Times published an article by American human rights champion Jerome Cohen. In it Professor Cohen reminded readers never to underestimate the Communist Party, the police, and other government agencies. They have repeatedly demonstrated their ability to twist the meaning of the law, and resort to difficult to detect, illegal means to abuse the powers that in principle are limited by the constitution and the nation’s laws.

Alas, Professor Cohen sees only the Chinese Communist Party’s human rights violations on the mainland. He turns a blind eye to countless similar violations by the pro-Taiwan independence DPP on Taiwan.

The author is a clear example. In 2004, DPP era “dinosaur prosecutors” and “dinosaur judges” imposed exit restrictions on the author. They deprived the author of his right to travel freely, as guaranteed by the constitution, for seven long years.

That was not all. The author’s three daughters and three friends, were cavalierly charged with “perjury” by Shihlin District Prosecutors Office, entirely on the basis of supposition, even before the sentence was delivered and the was closed. Their rush to prosecute was naked political persecution by “dinosaur prosecutors” and “dinosaur judges.”

The United Nations Human Rights Convention, as well as the spirit of the ROC’s laws call for the “presumption of innocence.” This author was falsely accused in 2004 by a Filipino maid. Until a verdict is handed down, a defendant must be regarded as innocent. Yet the Shihlin District Prosecutors Office cavalierly restricted the author’s freedom of travel. The author was scheduled to lead a group of students on a visit to the mainland. The prosecutors claimed this made the author a “flight risk.” The presiding judge did not even bother to consult the author for clairfication before cavalierly imposing travel restrictions. Together, they deprived the author of his right to leave the country for seven years.

During this seven-year period, the author made repeated legal appeals. The Supreme Court repeatedly ruled that the courts could not “presume a flight risk.” That is why it repeatedly remanded the case back to the High Court for retrial. Yet the “dinosaur judges” on the Taiwan High Court, repeatedly cited “maintaining the integrity of the proceedings” as a pretext. They brazenly defied the Supreme Court’s instructions. They flagrantly violated of the principle of presumption of innocence. They grossly exceeded their powers. Yet many of these “dinosaur judges” were later rewarded with generous promotions.

In May 2011, the Filipino maid’s false accusations were exposed in the international media. As a result she officially pleaded guilty to two counts of perjury. The third time the author was tried, the court summoned three expert witnesses who examined all of the physical evidence. They determined that the author had indeed been unjustly prosecuted. As a result the author was found not guilty. Only then were the long-standing exit restrictions lifted.

The author was acquitted in both the third and fourth trials. Yet without the introduction of any new evidence, “dinosaur prosecutors” in the High Prosecutor Office introduced anonymous letters as evidence, and in flagrant abuse of their power, appealed yet again.

The author would like to ask the Prosecutor General, can prosecutors really treat anonymous letter as the basis for an appeal? The author would also like to ask the Minister of Justice, is he really unaware of this miscarriage of justice?

The outrages hardly end here. During the fifth trial, “dinosaur judges” utterly ignored the author’s acquittal during the third and fourth trials. They obstinately reintroduced the Shihlin District Court’s faulty judgment, based on incomplete evidence. They copied directly from it, and created a patchwork quilt legal case. They ruled on the basis of previously discredited evidence. They defied the legal principle that new evidence overrides old evidence. What kind of logic is this? What sort of justice is this?

During the author’s fifth trial the presiding judge accused the author of “delaying the legal proceedings,” and refused to commute the sentence according to the “speedy trial law.” The presiding judge cited the author’s request for a continuance during the first trial as pretext. The author was not even informed of the judge’s actions in advance. This was tantamount to a sneak attack. Such a flagrant violation of due process contravemes the accused right to be tried in person. It denies the defendant his human rights. What can one call judges such as these, other than “dinosaur judges?”

In another similar situation, the presiding judge failed to inform the author of what was taking place. He cited a Supreme Court case, claiming it constituted evidence. He argued that it was similar in nature, therefore the author was guilty. Procedurally, this was a sneak attack. It deprived the author of his right to a legal defense. It cited only unfavorable cases. It did not cite favorable cases. It was clearly biased. What can one call judges such as these, other than “dinosaur judges?”

In fact, during the second trial, the Supreme Court made clear that the original evidence was riddled with dubious defects. Unless new evidence was presented, the verdict had to be “not guilty.” During the third trial, expert witness were called to examine all the evidence. They found that the evidence favored acquital, even more clearly than before. They found that the verdict should have been “not guilty,” even more clearly than before. Yet the fifth trial presented no new evidence. Instead, the presiding judge engaged in empty speculation. He treated his empty speculation as “circumstantial evidence.” This was a flagrant violation of the rules of evidence. The presiding judge failed to cite any reason for his rulings. As a result, the evidence cited turned into a web of contradictions. His judgment was based purely on speculation. It was clearly illegal. It was clearly in defiance of common sense. Yet he rendered this outrageous and tyrannical sentence. What can one call judges such as these, other than “dinosaur judges?”

According to the Judicial Yuan website, the presiding judge in this case, was a member of the same clique of judges who outraged the public with their ruling on the “three-year-old girl case.” The group’s judgment was utterly contrary to common sense. It provoked a public outcry and led to an escalation in public criticism. This judge was clearly a member of this group of “dinosaur judges.” Who knew the judge in this case would render all manner of illegal judgments? This was truly regrettable. What can one call judges such as these, other than “dinosaur judges?”

The author has long deferred to his defense attorneys’ recommentations. He has put up with these judges’ tyrannical behavior. Although the judge in the first trial slammed his fist down on the table and bellowed insults at the author. The author remained silent. But he now sees that his forebearance will not ensure a fair trial. He has no choice but to appeal to the public. He must make the truth behind these dinosaur judges and dinosaur prosecutors public. Only this will enable the public to make a fair evaluation. Only this will compel the courts to redress this judicial farce. If this miscarriage of justice can be made public, it may help promote judicial reform and systemic reform. It may help ensure human rights for the public at large. That would be a blessing, both for the general public and for the nation’s system of justice.

「恐龍法官」何時了？

民國101年是「龍」年， 102年為「蛇年」，俗稱「小龍」，「龍」在中國人心中，本是祥瑞的象徵，從最早的《易經》，乾元就用「龍」來代表各種階段型態，所謂「大哉乾元，萬物資始，乃統天」; 「龍」的本性，正是代表一種最為活躍創造的生命精神，所以在中華文化歷史中，一直非常推崇「龍」。

然而，「恐龍」代表的意思，卻正好相反；在眾人心目中，代表一種遲鈍、顢頇、僵化，所謂「恐龍法官」
，更代表一種背離常情、違反常理常識，卻又濫害無辜生命的恐怖怪物。在當今司法界，雖然有很多認真敬業、判案合情合理合法的「祥龍」法官，不幸的是，同時也有不少自命上帝、任意濫用生殺大權的「恐龍」法官，真正堪稱「害群之龍」！

本文作者因為曾經控告陳水扁誹謗案，令其坐牢八個月，復因反對台獨、主張統一，旗幟鮮明，所以深遭台獨人士嫉恨，視為眼中釘，因而親身經歷重大冤案，纏訟長達九年之久，深深看清楚某些恐龍法官惡性重大，他們不只讓司法成為曹興誠董事長口中的「絞肉
機」，更成為殘害忠良的「血滴子」！

民國102年1月17日，中國時報登出美國人權名教授孔傑榮（Jerome
Cohen）的大作，他在文中提醒讀者：「我們千萬不可以小覷共產黨、警察和其他部門，事實已屢屢證明，他們有能力透過曲解法律，和採用不易查察、卻往往非法的手段，在實踐中恢復被憲法和法律限制的權力。」

然而，孔傑榮教授只看到大陸共產黨統治下的人
權問題，卻忽略了台灣在民進黨台獨執政時期，同樣有很多類似情形。

本文作者就是明顯見證，從民國93年被民進黨時期的「恐龍檢察官」與「恐龍法官」限制出境，無端被剝奪憲法所保障的人權出境自由，長達7年之久！

另有甚者，作者的三個女兒與三位朋友，在全案未定讞之前，竟被臺灣士林地方法院檢察署用臆測的方法，輕率的扣上「偽證」罪名，匆匆起訴，形成「政治追殺」的恐怖恐龍！

根據聯合國「人權二公約」，以及我國法律規定的「無罪推定」精神，本文作者雖然在民國93年被菲傭誣告，但在定案之前，均應視為無罪，然而臺灣士林地方法院檢察署承辦檢察官，竟藉口作者會帶學生團參訪大陸，便輕率的以「有逃亡之虞」聲請限制出境，加上承辦審判長未向作者問清楚實情，竟也輕率照准，就此硬生生的剝奪了作者出境的遷徙人權，長達七年之久！

在此七年期間，筆者屢次依法抗告，最高法院也多次認為不能「憑空臆測有逃亡之虞」，所以多次發回要求高等法院更審，但臺灣高等法院的「恐龍法官」等，竟又多次強以「保全訴訟程序」為由，悍然拒絕最高法院意旨，不但明顯違反「無罪推定」原則，而且自我膨漲權力，這種「恐龍法官」，後來居然很多都獲高升！

直到民國100年5月，因為誣告作者的菲傭，透過跨國視訊，正式二度向法庭承認誣告，更（三）審法庭也傳訊三位專家證人，從種種物證鑑定，證實本案確為冤案，所以改判無罪，才解除了漫長的限制出境。

然而，作者在更（三）、更（四）審連續獲判無罪之後，高檢署「恐龍檢察官」居然在沒有任何新證下，硬用匿名信做證據，再度濫權上訴！

作者很想請問檢察總長，檢察官能用匿名信，做為上訴證據嗎？也很想請問法務部長，對於此中的重大冤情，是否知情呢？

更為過份的是，更（五）審的「恐龍法官」，竟然無視更（三）、更（四）審的無罪判決，硬是把原先士林地院人證據不全情形下的判決，重新抄襲、拼湊成章，以其舊內容為基礎判刑，完全違背「新證優於舊證」的法理，這叫什麼邏輯？這叫什麼天理！

特別是，更（五）審的受命法官，居然在沒有告知作者情形下，擅自以作者從前更（一）審曾經請假為由，逕指作者「拖延訴訟程序」，而拒絕根據「速審法」減刑，形同突襲偷襲，如此公然違反程序正義，違背直接審理原則，剝奪作者答辯人權，不叫「恐龍法官」，又叫什麼？

另外同樣情形，受命法官在未告知作者情形下，自稱引用最高法院定讞的類似案件做為證據，聲稱因為性質類似，所以同樣有罪；非但在程序上同屬突襲偷襲，剝奪作者的訴訟答辯人權，而且只舉不利案件，不舉有利案件，明顯非常偏頗，不叫「恐龍法官」，又叫什麼？事實上，本案在更（二）審時，最高法院就已明言，原先證據諸多可疑瑕疵，若無新證據補強，便應判為無罪，更（三）審更特別傳訊專家證人鑑定種種物證，強化有利證據，所以才宣判無罪；未料本次更（五）審並無任何新證，受命法官竟然只用臆測方法，自稱「間接證據」，明顯違反證據法則，受命法官而且多處判決未裁理由、所引事證與卷內矛盾，並且只用臆測方法作為判決基礎，明明很多公然違法，同時違反一般人的常情常理，卻仍悍然判刑，如此離譜卻又霸道，不叫「恐龍法官」，又叫什麼？

根據司法院網路資料，本案受命法官，正是當年轟動社會的「三歲女童案」被批評的同
組法官，當初該組判決完全背離常情常理，引起輿論嘩然、大加撻伐，明確命名該組法官為「恐龍法官」，未料本次該法官在本案中，又做出種種違背情理的違法判決，令人真正感慨；這種「恐龍法官」何時才能了！

本案長期以來，作者都聽從律師建議，對法官的態度忍氣吞聲，即使從前更(一)審受命法官曾經公然對作者拍桌
咆哮，作者也都忍辱沈默，但如今眼看一路以來的委屈並不能求得公正審判
，只有訴諸社會公評，將本案中很多恐龍法官與恐龍檢察官真相公諸於
世，才能讓社會大眾公正評鑑，也才能讓司法部門重新警惕冤情；若能因為本案的公開冤情，促成司法改革能從通盤制度改進，並對廣大民眾的人權能增進保障，相信才是真正全民之福，也才是真正司法之幸！

The Wealth of Nations

Posted by Bevin Chu on January 31, 2013

The Wealth of Nations
posted by Bevin Chu
January 31, 2013
Taipei, China

1. You cannot legislate the poor into prosperity, by legislating the wealthy out of prosperity.

2. What one person receives without working for, another person must work for without receiving.

3. The government cannot give to anybody anything that the government does not first take from somebody else.

4. You cannot multiply wealth by dividing it.

5. When half of the people get the idea that they do not have to work, because the other half is going to take care of them, and when the other half gets the idea that it does no good to work because somebody else is going to get what they work for, that is the beginning of the end of any nation!

Wake Up America!

Posted by Bevin Chu on January 26, 2013

Wake Up America!
A letter sent to me by a fellow gun rights defender
posted by Bevin Chu
Taipei, China
January 26, 2013

You’re sound asleep when you hear a thump outside your bedroom door. Half-awake, and nearly paralyzed with fear, you hear muffled whispers. At least two people have broken into your house and are moving your way.

With your heart pumping, you reach down beside your bed and pick up your shotgun. You rack a shell into the chamber, then inch toward the door and open it. In the darkness, you make out two shadows. One holds something that looks like a crowbar.

When the intruder brandishes it as if to strike, you raise the shotgun and fire. The blast knocks both thugs to the floor. One writhes and screams while the other crawls to the front door and lurches outside.

As you pick up the telephone to call police, you know you’re in trouble.

In your country, most guns were outlawed years before, and the few that are privately owned are so stringently regulated as to make them useless.

Yours was never registered.

Police arrive and inform you that the other burglar has died. They arrest you for First Degree Murder and Illegal Possession of a Firearm.

When you talk to your attorney, he tells you not to worry: the authorities will probably plead the case down to manslaughter.

“What kind of sentence will I get?” you ask.

“Only ten-to-twelve years,” he replies, as if that’s nothing.

“Behave yourself, and you’ll be out in seven.”

The next day, the shooting is the lead story in the local newspaper. Somehow, you’re portrayed as an eccentric vigilante while the two men you shot are represented as choirboys. Their friends and relatives can’t find an unkind word to say about them.

Buried deep down in the article, authorities acknowledge that both “victims” have been arrested numerous times. But the next day’s headline says it all:

“Lovable Rogue Son Didn’t Deserve to Die.”

The thieves have been transformed from career criminals into Robin Hood-type pranksters. As the days wear on, the story takes wings. The national media picks it up. Then the international media. The surviving burglar has become a folk hero.

Your attorney says the surviving thief is preparing to sue you and he’ll probably win.

The media publishes reports that your home has been burglarized several times in the past and that you’ve been critical of local police for their lack of effort in apprehending the suspects.

After the last break-in, you told your neighbor that you would be prepared next time. The District Attorney uses this to allege that you were lying in wait for the burglars.

A few months later, you go to trial. The charges haven’t been reduced, as your lawyer had so confidently predicted. When you take the stand, your anger at the injustice of it all works against you. Prosecutors paint a picture of you as a mean, vengeful man.

It doesn’t take long for the jury to convict you of all charges. The judge sentences you to life in prison.

This case really happened.

On August 22, 1999, Tony Martin of Enmesh, Norfolk, England, killed one burglar and wounded a second.

In April, 2000, he was convicted and is now serving a life term.

How did it become a crime to defend one’s own life in the once great British Empire?

It started with the Pistols Act of 1903. This seemingly reasonable law forbade selling pistols to minors or felons and established that handgun sales were to be made only to those who had a license.

The Firearms Act of 1920 expanded licensing to include not only handguns but all firearms except shotguns. Later laws passed in 1953 and 1967 outlawed the carrying of any weapon by private citizens and mandated the registration of all shotguns.

Momentum for total handgun confiscation began in earnest after the Hungerford mass shooting in 1987. Michael Ryan, a mentally disturbed man with a Kalashnikov rifle, walked down the streets shooting everyone he saw. When the smoke cleared, 17 people were dead.

The British public, already de-sensitized by 80 years of “gun control”, demanded even tougher restrictions. The seizure of all privately owned handguns was the objective even though Ryan used a rifle.

Nine years later, in Dubliner, Scotland, Thomas Hamilton used a semi-automatic weapon to murder 16 children and a teacher at a public school.

For many years, the media had portrayed all gun owners as mentally unstable or worse, criminals. Now the press had a real kook with which to beat up law-abiding gun owners. Day after day, week after week, the media gave up all pretense of objectivity and demanded a total ban on all handguns.

The Dubliner Inquiry, a few months later, sealed the fate of the few sidearms still owned by private citizens.

During the years in which the British government incrementally took away most gun rights, the notion that a citizen had the right to armed self-defense came to be seen as vigilantism.

Authorities refused to grant gun licenses to people who were threatened, claiming that self-defense was no longer considered a reason to own a gun. Citizens who shot burglars or robbers or rapists were charged while the real criminals were released.

Indeed, after the Martin shooting, a police spokesman was quoted as saying, “We cannot have people take the law into their own hands.”

All of Martin’s neighbors had been robbed numerous times, and several elderly people were severely injured in beatings by young thugs who had no fear of the consequences. Martin himself, a collector of antiques, had seen most of his collection trashed or stolen by burglars.

When the Dubliner Inquiry ended, citizens who owned handguns were given three months to turn them over to local authorities. Being good British subjects, most people obeyed the law. The few who didn’t were visited by police and threatened with ten-year prison sentences if they didn’t comply. Police later bragged that they’d taken nearly 200,000 handguns from private citizens.

How did the authorities know who had handguns?

The guns had been registered and licensed. Kind of like cars. Sound familiar?

WAKE UP AMERICA!

THIS [civilian disarmament] IS WHY OUR FOUNDING FATHERS PUT THE SECOND AMENDMENT IN OUR CONSTITUTION.

“It does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people’s minds”
–Samuel Adams

If you think this is important. please it forward to everyone you know. You had better wake up, because Obama is doing the very same thing over here. And there are stupid people in congress and on the street who will go right along with him.

“After a shooting spree, they always want to take the guns away from the people who didn’t do it. I sure as hell wouldn’t want to live in a society where the only people allowed guns are the police and the military.”
— William S. Burroughs, icon of the Beat Generation, one of the most politically trenchant, culturally influential, and innovative artists of the 20th century

And yes, even Karl Marx insisted on the right to keep and bear arms!

Marxists, should the worker be armed? - Quora

“workers must be armed and organized. The whole proletariat must be armed at once with muskets, rifles, cannon [sic!] and ammunition… Under no pretext should arms and ammunition be surrendered; any attempt to disarm the workers must be frustrated, by force if necessary.”
— From the Address of the Central Committee to the Communist League, by Karl Marx and Frederick Engels in 1850.

Minarchism Always Becomes Maxarchism

Posted by Bevin Chu on January 24, 2013

Minarchism Always Becomes Maxarchism
by Bevin Chu
Taipei, China
January 24, 2013

“The end state of every government is tyranny!”
— John Stovall

Or as The China Desk has noted on various occasions:

“Minarchism always becomes maxarchism.”

“Limited government always becomes unlimited government.”

“The difference between limited government and totalitarianism, is the difference between the caterpillar and the moth.”

“Limited government is merely totalitarianism in its embryonic stage.”

“Limited government is merely the larval stage of totalitarianism.”

Corollaries:

“The freest minarchies become the most vicious tyrannies.”
— methlyamine

“Limited government is like limited cancer.”
— MoT

“Democracy is the apotheosis of institutionalized slavery.”
— d.c. sunsets

Deconstructing Japan’s Claim of Sovereignty over the Diaoyu/Senkaku Islands

Posted by Bevin Chu on January 1, 2013

Deconstructing Japan’s Claim of Sovereignty over the Diaoyu/Senkaku Islands
by Ivy Lee and Fang Ming
The Asia-Pacific Journal, Vol 10, Issue 53, No. 1, December 31, 2012.

The China Desk: Ms. Ivy Lee is a brilliant scholar and a personal friend. This is one of the strongest rebuttals of spurious Japanese territorial claims to Diaoyutai penned so far. Highly recommended.

“The near universal conviction in Japan with which the islands today are declared an ’integral part of Japan’s territory‘ is remarkable for its disingenuousness. These are islands unknown in Japan till the late 19th century (when they were identified from British naval references), not declared Japanese till 1895, not named till 1900, and that name not revealed publicly until 1950.” Gavan McCormack (2011)1

Abstract
In this recent flare-up of the island dispute after Japan “purchased” three of the Diaoyu/Senkaku Islands, Japan reiterates its position that “the Senkaku Islands are an inherent part of the territory of Japan, in light of historical facts and based upon international law.” This article evaluates Japan’s claims as expressed in the “Basic View on the Sovereignty over the Senkaku Islands” published on the website of the Ministry of Foreign Affairs, Japan. These claims are: the Senkaku/Diaoyu island group was terra nullius which Japan occupied by Cabinet Decision in 1895; China did not, per China’s contention, cede the islands in the Shimonoseki Treaty; Japan was not required to renounce them as war booty by the San Francisco Peace Treaty; and accordingly Japan’s sovereignty over these islands is affirmed under said Treaty. Yet a careful dissection of Japan’s claims shows them to have dubious legal standing. Pertinent cases of adjudicated international territorial disputes are examined next to determine whether Japan’s claims have stronger support from case law. Although the International Court of Justice has shown effective control to be determinative in a number of its rulings, a close scrutiny of Japan’s effective possession/control reveals it to have little resemblance to the effective possession/control in other adjudicated cases. As international law on territorial disputes, in theory and in practice, does not provide a sound basis for its claim of sovereignty over the Diaoyu/Senkaku Islands, Japan will hopefully set aside its putative legal rights and, for the sake of peace and security in the region, start working with China toward a negotiated and mutually acceptable settlement.

To read the rest of the article, visit
http://japanfocus.org/site/view/3877

Bowring’s Invented History

Posted by Bevin Chu on June 7, 2012

Huangyan Island

Bowring’s Invented History
June 7, 2012
Taipei, China

The China Desk: Dedicated China-demonizer Philip Bowring, whose work is never done, recently published an article in the Wall Street Journal entitled, “China’s Invented History.” Bowring asserts that “Beijing is rewriting the past to justify its expansive claims to disputed waters.”

http://online.wsj.com/article/SB10001424052702303918204577446202239267134.html?mod=googlenews_wsj

Daniel Ong, a Chinese-Filipino, puts Bowring’s allegations under the microscope and demolishes them, one by one. The facts are clear. Within the framework of the conventional monopolistic state, the Huangyan Islands belong to China.

Actually, most territorial disputes bedeviling the world, including the recent ones in the South China Sea, are the tragic but predictable result of the conventional monopolistic state and its flawed concepts of “collective ownership.”

Free market anarchism, grounded correctly in individual ownership, would have prevented such clashes from arising in the first place.

The Huangyan Isles
by Daniel Ong

“A little learning is a dangerous thing.” So wrote Alexander Pope in the 18th century. A little learning can even be more dangerous nowadays, when it hides under the cloak of a prestigious publication and is widely disseminated through modern online media. One example of such is Philip Bowring’s article “China’s Invented History” tackling the China-Philippine conflict over Scarborough Shoal, posted on the website of the Wall Street Journal. The article of Mr. Bowring charges that China is rewriting history to bolster its own claim to Scarborough Shoal (and the Spratly Islands).

Mr. Bowring’s main evidence for Chinese historical revision is that Chinese sailors were latecomers to the South China Sea and could not have been the first to discover Scarborough, as China claims. Mr. Bowring presents other arguments to counter the Chinese claim to Scarborough: (1) the Philippines has a stronger claim to Scarborough Shoal on the basis of “geography,” and (2) China is wrong in using the 1898 Treaty of Paris as a basis for its claim.

Let us first consider Mr. Bowring’s subsidiary arguments. Mr. Bowring writes that the “Philippine case for Scarborough is mostly presented as one of geography,” and proceeds to cite the oft-repeated figures showing the proximity of Scarborough to Luzon, and the distance of Scarborough from China. He also writes that China avoids these inconvenient geographical facts in pressing its claim.

Mr. Bowring is apparently unaware that the Department of Foreign Affairs of the Philippines has released a position paper on the matter last April 18 (Department of Foreign Affairs, “PH sovereignty based on Unclos, principles of int’l law,” Philippine Daily Inquirer, 20 April 2012, A18; “ ‘Panatag is part of Phl territory’,” The Philippine Star, 20 April 2012, 10). The position paper stated that Philippine sovereignty and jurisdiction over “Bajo de Masinloc” or Scarborough is not premised on proximity or the fact that the rocks are within its 200-nautical-mile exclusive economic zone (EEZ) or continental shelf under the United Nations Convention on the Law of the Sea (UNCLOS).

Even the Philippine government has already realized that geographic proximity alone is not an adequate basis for claiming sovereignty over territory (Jon M. Van Dyke, “Legal Issues Related to the Sovereignty over Dokdo and Its Maritime Boundary,” Ocean Development & International Law, Jan 2007, 38(1-2): 159, 193; Louis Henkin, Richard Crawford Pugh, Oscar Schachter, and Hans Smit, International Law: Cases and Materials, 2nd ed., St. Paul: West Publishing, Co., 1987, 290, 306-307).

Mr. Bowring criticizes China for partly basing its claim to Scarborough on the 1898 Treaty of Paris between Spain and the United States. This segment is worth quoting in full, if only to demonstrate Mr. Bowring’s convoluted logic and his lack of knowledge regarding history in general:

Another unsteady pillar in China’s claim to the Scarborough Shoal is its reliance on the Treaty of Paris of 1898. This yielded Spanish sovereignty over the Philippine archipelago to the U.S. and drew straight lines on the map which left the shoal a few miles outside the longitudinal line defined by the treaty. China now conveniently uses this accord, which these two foreign powers arrived at without any input from the Philippine people, to argue that Manila has no claim.

The irony is that the Communist Party otherwise rejects “unequal treaties” imposed by Western imperialists, such as the McMahon line dividing India and Tibet. Does this mean Vietnam can claim all the Spratly Islands, because the French claimed them all and Hanoi has arguably inherited this claim?”

The argument of Mr. Bowring is untenable, in two ways.

(1) In his analysis, China contradicts itself when it rejects other “unequal treaties,” but uses the Treaty of Paris for its purposes. Mr. Bowring seems to imply that the Treaty of Paris is also some sort of “unequal treaty,” since it was concluded “without any input from the Philippine people.”

Mr. Bowring appears to be confused about the concept of unequal treaty. An unequal treaty, in the view of East Asian nationalists, is a treaty which was not negotiated between states treating each other as equals, but imposed upon a weaker state after its military defeat or with further threat of military action by a stronger state. For example, the Treaty of Nanjing signed by China after its defeat in the First Opium War, provided for the cession of Hong Kong Island to the United Kingdom (among other things), and is considered the first of the unequal treaties imposed by foreign powers on China. If the 1898 Treaty of Paris is to be considered an unequal treaty, the stronger state would obviously be the US, and the weaker state in this case would be Spain, which was forced to relinquish the Philippines (plus Guam and Puerto Rico) after its defeat in the Spanish-American War.

Therefore, even if the Treaty of Paris is interpreted to be an “unequal treaty,” what would be in question would not be the proper boundaries of the Philippines, but the validity of the transfer of the Philippines to the United States (just as the issue about the “unequal” Treaty of Nanjing would not be the boundaries of Hong Kong, but the validity of the cession). Even if the Philippines had remained under Spain, or even if the Philippines had successfully won its independence in 1898, the extent of Philippine territory would still not have been greater than what it had been before the Spanish-American War. One good thing about the Treaty of Paris is that it provided a clear delineation in writing of this territorial extent.

(2) Despite all this, one might still argue that the Treaty of Paris was null and void and is not binding on the Philippines, simply because the Philippines was not a participant in the negotiations leading to the treaty. It may be true that the Treaty of Paris was concluded between Spain and the US “without any input from the Philippine people,” but was this treaty later rejected by the Philippines?

The boundaries set by the Treaty of Paris (and by the Treaty of 1900 between the US and Spain, and the Treaty of 1930 between the US and the UK) served as the basis of the definition of Philippine territory in the 1935 Constitution of the Philippines.

One can argue further that the 1935 Commonwealth Government of the Philippines was not a true independent government. However, the definition of Philippine territory in the 1935 Constitution was adopted in the subsequent post-independence Constitutions of 1973 and 1987, and by Republic Act (RA) No. 3046 in 1961 defining Philippine baselines. On the Philippine claim, Fr. Joaquin G. Bernas has already written that “We are claiming land areas that are outside the lines drawn by the Treaty of Paris. The challenge for us is to be able to justify our claims under the present state of international law. Merely citing the shape or date of old maps will not settle the issues.” (“Scarborough issues,” Philippine Daily Inquirer, 14 May 2012, A17)

Perhaps the only thing that Mr. Bowring got right was this statement: “The seafaring history of the region at least for the first millennium of the current era was dominated by the ancestors of today’s Indonesians, Malaysians, Filipinos and (less directly) Vietnamese.” This statement at least is supported by current historical and anthropological knowledge. (Victor T. King, “Ethnolinguistic Groups of Southeast Asia,” inSoutheast Asia: A Historical Encyclopedia, from Angkor Wat to East Timor, ed. Ooi Keat Gin, pp. 492-498, Santa Barbara, California: ABC-CLIO, Inc., 2004).

Unfortunately, that’s about it; his subsequent statements reveal his limited knowledge about these ancestors of the Southeast Asians. Mr. Bowring writes that “Malay people from what is now Indonesia were the first colonizers of the world’s third largest island, Madagascar, some 4,000 miles away,” that “the Madagascan language and 50% of its human gene pool are of Malay origin,” and that “the Malay-speaking, Hindu-ized Cham seagoing empire of central Vietnam dominated South China Sea trade until it was conquered by the Vietnamese.”

Evidently, Mr. Bowring confuses “Malay” with “Malayo-Polynesian;” replacing all occurrences of “Malay” in the previous statements with “Malayo-Polynesian” would make them correct. The concept of “Malay” as a race encompassing the peoples of Indonesia, Malaysia, and the Philippines was an invention of 18th-century European racism (“Malay,” in Barbara A. West, Encyclopedia of the Peoples of Asia and Oceania, Volume II, p. 478, New York: Facts on File, Inc., 2009). “Malay people” now refers to people speaking the Malay language, a language which may have existed since before the Christian era, but attested in writing only in the 7th century CE (Hein Steinhauer, “Malay/Indonesian,” in Facts About the World’s Languages: An Encyclopedia of the World’s Major Languages, Past and Present, ed. Jane Garry and Carl Rubino, pp. 452-453, New York and Dublin: The H. W. Wilson Company, 2001).

Mr. Bowring argues that the Chinese could not have been the first to discover Scarborough, since the dominant seafarers in the South China Sea in the first millennium were the “Malays” (i.e., Malayo-Polynesians). Mr. Bowring believes that because the Malayo-Polynesians were the earlier seafarers, they must have discovered every existing land feature in the South China Sea before others did.

Even if Mr. Bowring is correct, the discovery of Scarborough by Malayo-Polynesians does not mean that it became their territory. A review of the Clipperton Island arbitration case would be helpful (http://www.ilsa.org/jessup/jessup10/basicmats/clipperton.pdf). The Clipperton Island case happens to be very similar to that of Scarborough. Clipperton is a coral atoll; it was and still is uninhabited, is closest to Mexico, and was claimed by both France and Mexico. Mexico argued that Clipperton had been discovered by Spain and therefore had belonged to Spain, and that Mexico succeeded to Spain’s rights over Clipperton upon independence in 1836.

The arbiter reasoned that even if it could be proven that Clipperton had been discovered by Spanish navigators, there was no evidence that Spain incorporated it in its possessions, so it could be considered territorium nullius in 1858, when a French naval lieutenant declared French sovereignty over it. Abandonment by France after 1858 (“no positive and apparent act of sovereignty”) was also not considered a factor to extinguish French sovereignty. Although the decision was rendered in 1931, the arbiter decided that based on the facts, sovereignty over Clipperton belonged to France from the date Nov. 17, 1858.

If Mr. Bowring thinks that the “13th-century map” is not sufficient basis for China to claim Scarborough, there are other more recent official acts and proclamations on the part of China. In 1935, China’s Land and Water Maps Inspection Committee published a journal listing the approved Chinese and English names of islands and other features in the South China Sea (Li Jinming and Li Dexia, “The Dotted Line on the Chinese Map of the South China Sea: A Note,” Ocean Development & International Law, July-Dec 2003, 34(3-4): 289).

In December 1947, the Chinese government at the time (which is the government now administering Taiwan) officially drew the dashed lines forming a U-shaped boundary around the South China Sea islands (Zou Keyuan, “Historic Rights in International Law and in China’s Practice,” Ocean Development & International Law, April-June 2001, 32(2): 161; Peter Kien-Hong Yu, “The Chinese (Broken) U-shaped Line in the South China Sea: Points, Lines, and Zones,” Contemporary Southeast Asia, Dec 2003, 25(3): 407). Scarborough Shoal lies within this U-shaped boundary.

In September 1958, China promulgated its “Declaration of the Government of the People’s Republic of China on Territorial Sea,” laying claim over the islands in the South China Sea, including Scarborough Shoal (Yann-Huei Song and Zou Keyuan, “Maritime Legislation of Mainland China and Taiwan: Developments, Comparison, Implications, and Potential Challenges for the United States,” Ocean Development & International Law, Oct-Dec 2000, 31(4): 306-307).

In February 1992, China promulgated its “Law on the Territorial Sea and the Contiguous Zone,” declaring sovereignty over Scarborough as part of the Zhongsha Island Group. In 1996, China’s legislature ratified the UNCLOS, but also declared that China was reaffirming its sovereignty over all the archipelagoes and islands listed in the 1992 Territorial Sea law (Yann-Huei Song and Zou Keyuan, 2000, 309).

As for the Philippines, it made a formal claim to Scarborough only in 2009, when the Philippine Congress passed RA 9522, labeling Scarborough a “‘Regime of Islands’ under the Republic of the Philippines” over which the country “exercises sovereignty and jurisdiction.” Before 2009, Scarborough was not considered Philippine territory even by its own Constitutions.

Mr. Bowring writes that “Beijing argues that its 1932 claim isn’t bound by the Convention, which came into effect in 1994 since it preceded it. That’s a handy evasion, most probably because China knows its case for ownership is weak by the Convention’s yardsticks.” These statements actually do not demonstrate China’s evasion, but rather Mr. Bowring’s ignorance of the UNCLOS.

The jurisdiction of the UNCLOS and the International Tribunal for the Law of the Sea (ITLOS) is generally understood to be limited to law of the sea disputes (Zou Keyuan, “The International Tribunal for the Law of the Sea: Procedures, Practices, and Asian States,” Ocean Development & International Law, Apr-June 2010, 41(2): 140). This means that the ITLOS only has jurisdiction over matters covered by the UNCLOS, such as disputes over delimitation of territorial seas and EEZs, and not issues such as which state owns a particular island in the sea. In other words, the UNCLOS deals with maritime boundary disputes, but is has no “yardsticks” when it comes to sovereignty disputes over land territory.

By appealing to the “Convention’s yardsticks,” Mr. Bowring probably thinks that the Philippines can rightfully claim Scarborough because it lies within its 200-nm EEZ. Raul C. Pangalangan had already written that it’s the other way around—the Philippines has to settle its title to an island first, before the extent of the surrounding territorial sea and EEZ can be determined (“Baselines: A primer for beginners,” Philippine Daily Inquirer, 6 February 2009, A14).

According to Mr. Bowring, China believes that its claim to Scarborough precedes the UNCLOS and is therefore not bound by it. That is absolutely correct: the UNCLOS sets the limits of territorial seas and EEZs; it does not and cannot alter existing state boundaries. This is the same reason why the Philippines cannot claim Taiwan and the Talaud Islands as its territories even if these lie within 200 nm of Philippine coasts.

All that Mr. Bowring’s article demonstrates is ignorance of history, anthropology, linguistics, law, and logic.

On the issue of Scarborough Shoal, the evidence suggests that China is not the one guilty of historical revision, and “today’s naval arguments won’t come to an end” until the guilty side stops rewriting the past.

It Belongs to China

Posted by Bevin Chu on May 12, 2012

Philippines and Mainland China Clash over Huangyan Islands

The China Desk: The following is an article published in the Manila Standard Today. The author, Victor N. Arches of San Juan City, is a retired investment and merchant banker, a retired Certified Public Accountant, and a retired economist who dabbles in history and political science. Arches correctly points out that at least within the framework of the conventional monopolistic state, Huangyan Island belongs to China.

Free market anarchism, grounded correctly in individual ownership, would have prevented such clashes from arising in the first place.

It Belongs to China
By Victor N. Arches II
April 28th, 2012
Manila Standard Today

http://manilastandardtoday.com/2012/04/28/it-belongs-to-china/

The Scarborough Shoal does belong to China which discovered it and drew it in a map as early as 1279 during the Yuan Dynasty. Chinese fishermen, from both the Mainland and Taiwan, have since used it. As a matter of fact, Guo Shoujing, (the Chinese astronomer, engineer and mathematician who worked under the Mongol ruler, Kublai Khan) performed surveying of the South China Sea, and the surveying point was the Scarborough Shoal which is considered part of the Zhongsha Islands (renamed Huangyan Island in 1983).

By contrast, the “old maps” being relied upon by our Department of Foreign Affairs in its spurious claim on the same territory were drawn up only in 1820, or 541 years after China’s. I am surprised that Senator Edgardo Angara—supposedly a renowned lawyer—can claim that a map drawn 5 centuries and 4 decades after, takes precedence over the much earlier map of China.

But I am all the more astonished that Fr. Joaquin Bernas, in his April 22 article in another newspaper, being one of the main framers of the 1987 Constitution, uses the 1982 UN Convention on the Law of the Sea as his basis to defend the Philippine claim. This, despite and after acknowledging the fact that, indeed, “the Scarborough Shoal is OUTSIDE THE LIMITS set by the Treaty of Paris for Philippine territory.” What kind of double-speak is that?

So, what exactly was the territory we declared independence from the US in 1946? Why is it that NONE of our constitutions, past and present, from 1899, 1935, 1943, 1973, 1986 and 1987, include either the Spratlys or the Scarborough Shoal within our declared national territory? Where, or from whom, did we, all of a sudden, acquire title to these? Out of thin air?

In the late 1970s, China organized many scientific expeditions in the Shoal and around that area. In fact, in 1980, a stone marker reading “South China Sea Scientific Expedition” was installed by China on the South Rock. This Chinese marker was removed, without authority, by the Philippines in 1997.

All official maps published by the Philippines until the 1990s excluded both the Spratlys and Scarborough Shoal from its territorial boundaries. Our own Republic Act No. 3046, passed by our Congress and approved in 1961, stopped us from our claim. Yet, we had the temerity to amend this law on March 10, 2009, after 48 long years, to unilaterally include the disputed territories.

But what takes the cake is the fact that China holds three international treaties in support of its claim over the territories in question—namely, the 1898 Treaty of Paris between the US and Spain, the 1900 Treaty of Washington between Spain and the US, and the 1930 Treaty between Great Britain and the US, all limiting Philippine territorial limits to the 118^th degree meridian of longitude east of Greenwich.

On the other hand, the basis of the Philippine claim is restricted to proximity, relying solely on the 1982 United Nations Convention on the Law of the Sea. As far as I know, a mere “convention” cannot overturn or supersede a treaty or an agreement reached between colonial powers. And even if it were considered a “law”, it cannot be made to take effect retroactively.

Whom are we fooling?