Letter to Taiwan Minstry of Education

03 SEP 2003 17:35:21
¥D¡@¡@¦®: Concerning Human Rights Abuses at National Cheng
Kung University
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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