Judical Reform Committee

10/5/2001 2:52 AM

To: The Non-Governmental Judicial Reform Committee

4 October 2001

I would like to inform members of the Judicial Reform Committee that,
despite a Ministry of Education Appeal decision in my favor, National
Cheng Kung University, in Tainan, continues to defy the Ministry ruling
to issue me a contract. Moreover, as if no appeal decision occurred,
university officials continue to investigate me.
As you know, a final appeal decision cannot be contested. This is
not only a principle of law, but of common sense. If an appeal were
contested, there would be no point to an appeal, since no end to it.
Moreover, if the university could contest an appeal ruling, the
appellant could too, to no end. Parties to the appeal could overrule
the appeal committee, against logic and law.
For the same reason, an appellant is not required to defend himself
against accusations that were the basis of the appeal. If the same
accusations were made, the appeal would not logically be final.
If an appeal were not final, it would be better to accept
accusations the first time than contest them countless times thereafter,
at cost of time and money to no purpose. The appellant would be so busy
defending himself, it would not be worthwhile defending himself.
If an appeal were not limited (thus final), the appellant’s limited
resources could not match the unlimited resources of the institution.
An appeal judgment favoring the institution would not reflect justice,
but power. But the standard of an appeal, or of any lawful action, is
not power, but justice.
An appeal process does not guarantee either party will make the
best case; it only guarantees the right to make the best case. The
university had that right and abused it. It had unlimited time and
resources to make the best case against the appellant; in fact, the
appellant pleaded with the university to follow legal regulations. That
the university did not heed the appellant’s pleas should not benefit the
university.
If an appeal could be contested based on further "evidence," an
appellant could be subject to endless investigations. Moreover, an
institution could deliberately, or maliciously, make a weak case, then
contest an appeal decision based on the weakness of its case. This
could be repeated until the appellant quit.
An appellant does not have the personal and material resources of
an institution. An institution has undue influence and can assign
numerous payroll staff to advance a case over many months. But the
appellant has only himself and limited resources.
Therefore, a university could wear down an appellant over many
years (this case has already lasted more than two and a half years),
forcing him to resign rather than continually contest the case. This is
more so when foreign residence is an issue.
The protection of the individual, based on his limited resources to
defend himself, is the basis of the "one-shot" rule in Anglo-American
law known as the rule against "double jeopardy": the institution (here,
the university) is entitled to one chance to make its case. Otherwise,
it could forever claim the right to make a better case. Under the color
of law, an appellant could be harassed, humiliated, and intimidated
until he gave up. This is abuse of power.
Violations of rights committed in the university’s dismissal action
are well documented and partly included in the Ministry of Education
appeal decision. They are sufficient to show either abuse of power or
negligence.
Serious as these violations were, current violations are more so.
In defiance of the Ministry ruling and admonitory letters to issue the
contract, the university continued to use its authority to "investigate"
me. Only weeks after the Ministry issued its decision, the university
announced it would investigate me yet a third time for the same
accusations, although I had already won two appeal decisions.
But since a judicial review was completed by the Ministry of
Education, subsequent university investigations of the same accusations
were not protected by a principle of judicial review but were, rather,
an abuse of power:
First, since the Ministry ruled in my favor, investigations of the
same accusations were in defiance of the Ministry ruling, hence the
law. University officials acted on their own behalf, not on behalf of a
sanctioned review process. Yet, acting in defiance of authority, they
used official authority to effect their goal. This is the general
understanding of abuse of power.
In addition, since the university never issued a teaching contract,
university officials "investigated" an individual not employed by the
university, which is an abuse of power.
Finally, since I refused, under legal protest, further defense of
accusations that were the basis of my Ministry appeal, any claims by the
university to proof of those accusations are liable to laws against
malicious libel.
Officials are not authorized to use tax-paid money and resources to
investigate anyone. In my case, the Ministry ruling prevents this. But
common sense requires that official investigations be sanctioned by law
and under legal protections.
The issues, including those of human rights, are grave. In
addition, because, in a democracy, university faculty are generally most
vocal in their commitment to human rights, the backward idea of
democracy at National Cheng Kung University should arouse concern.
Democracy is not exercised by debating its principles at international
conferences abroad, but by enforcing its principles at home.
In view of a pattern of abuses, and in respect of Taiwan’s
democracy, National Cheng Kung University should be placed under limited
autonomy, or National Trusteeship, for a period of several years, so all
actions are invigilated and carefully regulated by outside committees,
under the authority of the Ministry of Education, until observance of
law becomes routine.
University officials must recognize that committee members have
legal obligations. In law, voting one’s conscience is not sufficient if
one’s conscience does not recognize the law. Official authority is not
freely exercised, but bound by the constraints of law. In this
instance, the law is represented by the Ministry of Education ruling to
issue a contract. Yet university committees continue to sit in defiance
of that ruling. This should worry those committed to the future of
Taiwan democracy.