Concerning Human Rights Abuses at National Cheng Kung University

Subject:
Concerning Human Rights Abuses at National Cheng Kung University
Date:
Wed, 03 Sep 2003 17:57:50 +0800
From:
vertigo@ms22.hinet.net
To:
moe
CC:
eyemail@eyemail.gio.gov.tw, peu03@mail.gio.gov.tw,
mail@mail.moe.gov.tw, vp@mail.oop.gov.tw, tahr@seed.net.tw,
twjrf@seed.net.tw, rquinn@midway.uchicago.edu

Ministry of Education
Department of Higher Education

cc: Office of the Premier, Minister of Education, Taiwan Commission on
Human Rights, Taiwan Association for Human Rights, The Judicial Reform
Foundation, Scholars at Risk

3 September 2003

Dear Ministry officials:

There are long-standing issues at National Cheng Kung University
serious enough to merit the Ministry’s concern:
These include legal rights violations the Ministry bold-faced in
its ruling of 8 January 2001. They involve closed dismissal hearings,
secret and unproved accusations, and secretly circulated letters at
official hearings.
Of equal concern is a culture of arrogance among high-ranking
officials at our university, thinking they are the law rather than
agents of the law. It’s as if anything they do is right because they
do it.
Lack of penalties insures such arrogance. As one official told me,
“If we did something wrong, the Ministry would have punished us.”
Such arrogance led to the university’s defiance of a Ministry
ruling for over two years. It will lead to further abuses until the
Ministry takes punitive action. Allowing officials privileges outside
the law undermines the law and confidence in remedy under the law.
A tactic is using democratic forms to deny democratic process.
Thus committees are used to harass faculty in the form of “review.”
Laws are used or “interpreted” for unlawful aims. A three-level review
process indifferently repeats violations, as happened in my dismissal.
A passive faculty encourages misconduct. Some faculty routinely
ratify decisions made by a chairman. This happened in a dismissal case
in 1994.
Finally, chairs or legal counsel write up decisions that may defy
the intent of committee members. This happened in a university appeal
hearing, where a final appeal ruling in my favor was written up to mean
I should be reviewed again, against principles of final appeal.
In a culture of indifference, lawyers claim to “interpret” laws,
allowing a handful of officials to dictate university policy. This
undermines the law under color of law. One dean openly doubted
administrators were in violation of the law since the university had a
lawyer.
Of course, such naivete may be feigned, part of stonewalling
tactics to impede remedy. A child knows that lawyers do not represent
the law but the interests of a client.
Unfortunately, these are short-term interests of a few officials
rather than the long-term interests of a national university, whose
goal is to educate citizens. A university is not a shady business concerned

with short-term profits or “winning.” A university is a social
institution transmitting values from one generation to the
next. If those values are undermined so is the social welfare.
Those values were undermined when the university repeatedly
violated democratic and ethical principles, allowing secret review,
denying a final review, and defying a Ministry ruling for more than two
years. Indifference to ethical and legal principles is not a standard
students should follow.
Laws, not lawyers, represent a university’s long-term interests.
In a democratic institution, laws must be obeyed, not “interpreted.”
In a democracy, only the judiciary interprets laws, within constitutional
limits.
Laws, not lawyers, should determine university policy. If a law
needs to be interpreted, it is not a law.
In Law an official must execute laws, not “interpret” them or have
a lawyer “interpret” them. If he does not understand the law, he
should resign or be dismissed.
The tactic seems to be that if a lawyer “interprets” the law, the
official escapes responsibility. This means he can do anything.
Barring legal ethics review, a lawyer is not responsible either.
This opens the door wide to countless abuses and official
mischief, as shown in my dismissal. Legal rights violations are allowed
under
color of law. Foreigners are denied protection. Final rulings are
claimed not to be final. Ministry rulings are claimed not to be
binding or “interpreted” to undermine their legal benefits.
Laws do not prevent abuses but remedy them when they occur. But
without legal ethics, remedy can be delayed indefinitely. A university
lawyer can file a dismissal action against a professor, bypassing legal
protections. He can claim a foreigner has no appeal rights after the
appeal favors the appellant. To justify his action, he can conceal a
material fact, such as a Ministry ruling, with no penalty either from
the court or from a bar association. He can advise noncompliance with
a Ministry ruling safe from penalties for professional misconduct or
criminal laws for obstruction of justice.
Regardless of legal ethics in Taiwan, in law an official can
transfer duties but not responsibility. This was clear in the case at
Ho Ping Hospital. It is clear in the case of a president who
repeatedly ignored advice by Faculty Union members about legal violations.
The president’s failure to heed such advice cost taxpayers
millions of dollars in back pay and continues to impede remedy for human
rights
violations. If his legal advisers misguided him, he should have
terminated their employment by now.
But the president seems indifferent to wider social values. These
include honoring laws and benefits guaranteed by law.
One benefit of a final appeal ruling is that no accusation
rejected on appeal can be revived. Otherwise a "final” appeal is not final,

like that “square vase” Confucius ridiculed when he said names must be
“rectified” to have justice. Yet the university held “review” meetings
repeating accusations rejected on Ministry appeal.
Another benefit is a formal apology. I have still not received a
formal apology from the university. We teach our children to apologize
for misconduct. But in the culture of arrogance at our university,
officials need not apologize. Instead, a personnel official and
associate dean, representing the university president, threatened to
contest the case in court for years if I did not forfeit the benefits
of the Ministry ruling.
Finally, the university has still not awarded full salary and
compensation. This violates accepted principles of ethics and
international law (for example, the United Nations International
Covenant on Civil and Political Rights).
The university lawyer (as I understand) continues to use the
Employment Law to justify his actions. The Ministry of Education as
well as a Taiwan court has rejected the applicability of this law.
But a common tactic is to repeat administrative abuses in order to
impede administrative remedy. Since officials are never punished for
violations, repeating them delays and discourages remedy.
These tactics are shown in my futile efforts to punish a student
who improperly accused me in 1999. I have heard countless reasons why
she cannot be disciplined.
As the saying goes, two reasons are as bad as none. If sincere,
one reason is enough.
Second, if a student’s accusation is formally accepted, a
professor has the right to challenge it.
Third, an Office of Student Affairs is established for
teacher-student mediation. No official has a right to deny that
purpose. A professor has a right to request a supervised meeting with
a student in the Office of Student Affairs. An official who denies that
right should be dismissed.
Fourth, a court decision should not prevent administrative remedy,
any more than it prevents parental punishment. A legal decision is not
a moral decision. A court rules on a specific act, not general
conduct. If a student is acquitted of drunk driving it does not mean
she cannot be disciplined for drunken behavior.
My legal action against this student was a legal action between
persons, not between a teacher and a student. The student was absolved
of causing my dismissal, not of writing the letter. The student ethics
of writing that letter concerns a school, not a court.
But evidently there is little sincerity among officials involved
in this dispute. Laws are ignored to persecute a professor but invoked to
prevent remedy.
In addition, officials are responsible for accepting and secretly
circulating the student’s letter. By protecting the student they are
protecting themselves. The fact that the student gained employment as
a part-time teacher complicates the ethics of the case.
Preventing remedy for these abuses, or making remedy impractical,
will discourage foreign academics from teaching here. It also
undermines confidence that Taiwan observes human rights.
Administrative appeal or litigation is no substitute for routine justice,
just like
laws on paper are no substitute for the Law, duly enforced.

Sincerely,


Professor Richard de Canio
Department of Foreign Languages and Literature
National Cheng Kung University
(06) 237 8626