Taiwan and China face the same difficulty: Their constitutions do not recognize each other as a “foreign state.” This means that when Taiwan or China prosecute a person for treason and colluding with the other side of the Strait, they are contradicting their constitutions if the law refers to a “foreign state.” The Chinese government continues to hand down heavy sentences to Taiwanese spies, while the Taiwanese government hands down such light sentences to Chinese spies that it has no deterrent effect. This is disconcerting.
Taiwanese judges usually rely on the National Security Act (國家安全法) in such cases, because it includes collusion with “Mainland China” as an offense, and because the Criminal Code (刑法) does not state that contact with “Mainland China” constitutes treason. The Criminal Code says that the heaviest sentence for espionage is life imprisonment or the death sentence, while the National Security Act says that the maximum sentence is a jail term of no more than five years.
In Taiwan’s biggest Chinese espionage case, retired Chinese People’s Liberation Army (PLA) captain Zhen Xiaojiang (鎮小江) was sentenced to four years in prison, while retired major-general Hsu Nai-chuan (許乃權), who was recruited by Zhen, was sentenced to two years and 10 months in prison, both based on the National Security Act. If even the biggest cases are publishable with such light sentences, then what about others?
It should be noted that the Supreme Court ruled on the part of the case that dealt with divulging national defense secrets, while the High Prosecutors’ Office investigated the case based on the Criminal Code.
In the code, treason offenses refer to collusion with a “foreign state.” There are two paragraphs in Article 109 of the code regarding the disclosure of confidential information. The second paragraph of the article explicitly deals with foreign states, so it might be unconstitutional to cite. However, the first paragraph is applicable, as it does not involve foreign states.
As for the length of prison terms, the first paragraph of the article states that any person disclosing confidential information can be sentenced to up to seven years in prison, while the second paragraph states that any person disclosing confidential information to a foreign state or its agent can be sentenced to up to 10 years in prison. Seven years in the paragraph that does not mention “foreign states” and 10 years in the one that does: Of course there is a difference in deterrence.
Looking at the Zhen case, the contemptuous and careless look on his face when he gave up his right to appeal the case tells us how preposterous it is when a Chinese spy can show off his arrogance just because Taiwan avoids violating the Constitution.
Even more depressing, although China should have the same concerns over violating its constitution, it applies all its laws involving a foreign state to Taiwan as well. Why? It is very simple: because all Chinese laws — including its Criminal Code, National Security Act and Anti-espionage Act — involving affairs “outside its borders” apply to Taiwan.
These concerns about the application of laws have all been preliminarily addressed in Taiwan’s Criminal Code of the Armed Forces (陸海空軍刑法). Similar to the US Constitution, Article 10 of the code says that “the word ‘enemy’ in the code denotes any country or organization that engages in or whose force confronts with the Republic of China.”
Before writing a law against espionage, the legislature should amend all related laws by integrating the concept of “outside the borders” and “enemy” to avoid overlap or contradicting itself. It would also allow heavier penalties based on the Criminal Code.
In addition, according to Article 17 of the Criminal Code of the Armed Forces: “A person who commits an act of espionage for an enemy or renders aid to an enemy’s spy shall be punished with death or imprisonment for life … If the offense committed was slight, the punishment may be reduced.”
It would also be worth discussing whether it would it be possible to amend the code to make it applicable to retired military officers within a certain number years after retirement without violating the Constitution.
Christian Fan Jiang is a member of the Northern Taiwan Society.
Translated by Eddy Chang