LEGAL NOTE 0032: WHAT HAPPENED IN THE DEPORTATION OF 10 TAIWANESE ON 02 FEBRUARY 2011 TO MAINLAND CHINA (PROC)? CASE OF EXTRADITION OR DEPORTATION?
SOURCE:
Passion For Reason
Taiwan imbroglio: extradition or deportation?
By Raul Pangalangan
Philippine Daily Inquirer
First Posted 05:03:00 02/18/2011
Filed Under: Foreign affairs & international relations,Diplomacy, Conflicts (general), Politics, Crime and Law and Justice
THE BASIC FACTS
The newspaper accounts do not give us too clear a picture. On Dec. 27 last year, the Philippine government arrested 24 suspected swindlers during raids in Makati, Parañaque, Muntinlupa and Quezon City for Internet fraud. Fourteen of them were Taiwan nationals, the other 10 from the mainland. They couldn’t show their travel papers to prove their nationalities. No case was filed against them until Jan. 4 and 5, 2011—apparently only after Taiwan’s de facto embassy in Manila, the Taipei Economic and Cultural Office (TECO), had complained about their nationals’ detention.
Soon thereafter, TECO representatives secured a writ of habeas corpus from the Court of Appeals. On Jan. 31, the CA ordered immigration officials to produce the suspects before the court and explain why they were being held in custody. The CA set the case for hearing on Feb. 2. However, on that day, the suspects were boarded on a chartered flight to Beijing. Apparently, TECO officials rushed to the airport with a copy of the CA order but were barred by airport police.
THE FULL ARTICLE
THE DIPLOMATIC impasse with Taiwan is an intensely political issue for which the law offers scarcely a fig leaf of legitimation. It now falls on the lawyers to bear the brunt of the debate, and the arguments they have made so far can pass muster.
Taiwan legitimately fears for its own nationals who have scammed some $20 million from victims in the mainland. Beijing is legitimately aggrieved since those victims are its nationals. It has brought pressure to bear upon us, and we have obliged, if rather hastily. But Beijing should have been appeased by our cooperation and held its fury in check. The front-page photograph showing Beijing’s harsh welcome—the fugitives’ heads were covered in black sacks upon their arrival at the airport—certainly does not inspire confidence in the quality of Beijing’s justice.
The newspaper accounts do not give us too clear a picture. On Dec. 27 last year, the Philippine government arrested 24 suspected swindlers during raids in Makati, Parañaque, Muntinlupa and Quezon City for Internet fraud. Fourteen of them were Taiwan nationals, the other 10 from the mainland. They couldn’t show their travel papers to prove their nationalities. No case was filed against them until Jan. 4 and 5, 2011—apparently only after Taiwan’s de facto embassy in Manila, the Taipei Economic and Cultural Office (TECO), had complained about their nationals’ detention.
Soon thereafter, TECO representatives secured a writ of habeas corpus from the Court of Appeals. On Jan. 31, the CA ordered immigration officials to produce the suspects before the court and explain why they were being held in custody. The CA set the case for hearing on Feb. 2. However, on that day, the suspects were boarded on a chartered flight to Beijing. Apparently, TECO officials rushed to the airport with a copy of the CA order but were barred by airport police.
From a legal standpoint, Taiwan would not have been in a position to complain had we resorted to a straightforward extradition rather than a mere deportation proceeding. Extradition would have bound us to send the fugitives to China whatever their nationality, while deportation theoretically empowers us merely to exclude them from our borders to wherever in the world they can be kept from causing us harm.
If it were an extradition, the One China policy would be superfluous. Under the Joint Communiqué signed by Ferdinand Marcos and Chou En Lai in 1975, we affirmed that “there is but one China and that Taiwan is an integral part of Chinese territory” and that Beijing is the “sole legal government of China.” There is no need for that here because we have signed an extradition treaty with Beijing. We have bound ourselves to send to them fugitives from Chinese justice found hiding on Philippine soil. The nationality of the extraditee is irrelevant. It cannot immunize him from being sent to the requesting state. All that matters is that he be charged criminally with an extraditable offense by the requesting state before its own courts.
Indeed, under recent Supreme Court rulings, extraditees are entitled to minimum due process protection since extradition proceedings are sui generis. They are unlike the accused in criminal proceedings, whose innocence or guilt lies in the hands of Philippine courts.
Yet apparently it wasn’t an extradition at all. It was merely the deportation of undesirable aliens, which gives rise to certain questions. For sure we have that power. We hold the sovereign power to exclude or deport aliens whose presence in our territory is inimical to the national interest. And in terms of due process protection, they are in no better position than extraditees. If extraditees are in legal limbo, deportees are in procedural purgatory. They are technically not under arrest but merely “detained pending deportation.” They are even worse off if they cannot show valid travel papers, since they can be summarily removed.
But the real issue here is not whether we can deport, but deport to where? Why deport them to Beijing? Unlike extradition, deportation theoretically leaves the alien free to go anywhere outside our shores. It doesn’t lock us into sending them to Beijing. If the rationale is to rid us of undesirable aliens, then it shouldn’t really matter where we dispatch them. We can send them to the state of nationality, or the state of habitual residence, or the point of origin. (In this case, both Beijing and Taiwan have actually claimed to be the fugitives’ state of nationality.)
The best argument thus far presented by the Philippine government is that it looked like Taiwan was going to treat their native sons with kid gloves, based on actual recent experience of criminals deported by Manila only for Taipei to set them free. In other words, if the goal is to ensure that the Internet scammers faced justice, we were better off sending them to Beijing, the jurisdiction with a greater stake in the case. But that is precisely why we should have resorted to extradition, whose purpose is to punish, rather than deportation, which aims merely to protect the native.
Unless Beijing sees itself as merely calling in old debts or brazenly calling the shots, or conversely, if Beijing is truly friend, ally and sovereign peer to our Republic, it ought to have spared us the completely unnecessary spectacle of the hooded captives and assured us the fairness and justice that would have been our end-goal had we conducted a bona fide extradition. We sent the fugitives to Beijing to face the music. Let Beijing assure us—and Taipei—that the music they will play is not a funeral dirge.
J.A.B. Bulao & Associates 