Tainan, Taiwan
21 March 2011
Dear Iris,
We spoke over the phone around 4 p.m. on Monday. I asked for legal assistance. I have an appointment on Wednesday, March 23, at 3:30 p.m. but I thought I would sum up the issues here too.
In June 1999 I was illegally dismissed from National Cheng Kung University. When the first accusations against me were challenged, a student letter was secretly circulated at hearings to insure my dismissal. The student, Chen An-chun ("Lily" Chen) accused me of failing her unfairly. She had no proof. She never contested her grade at the time but only eight years later in secret. (I saw the student's letter only after taking her to court a few years later.)
The dismissal was canceled in December, 1999 but the university lawyer argued, against all legal principles, that a foreign teacher was not protected by the Teacher's Law, which prevented dismissal except for misconduct. The courts and the Ministry of Education rejected this claim later, but the lawyer's claim contradicted the legal right to benefit from a favorable appeal ruling.
In US law the lawyer's action would have been prevented by the principle known as estoppel: that is, one party in a dispute cannot contradict a previous claim, either implicit or explicit. If the university held an appeal the university should be bound to honor an appeal that favors the appellant.
After numerous tricky hearings I gave up expecting justice at the university and appealed to the Ministry of Education in Taipei, which ruled in my favor on 8 January 2001. However, Kao Chiang, university president, refused to honor that appeal for nearly two and a half years, until May 2003. Instead the university filed a lawsuit, claiming foreigners had no right to appeal, despite the fact the university held numerous appeal hearings and attended the one in Taipei, another violation of the estoppel principle.
In the meantime two university officials invited me to a meeting with representatives of NCKU's Teachers Union. At that meeting the two officials tried to extort my resignation from the university, at half pay, and threatened to delay the case indefinitely in the courts unless I did so. I believe this would fall under the felony known as extortion under US law, which involves coercion (threats,force, blackmail, etc.).
Even when the university finally reinstated me in May, 2003 it held further hearings and imposed penalties despite the Ministry ruling! Those were also overturned by the Ministry of Education.
The legal misconduct committed by university officials in this case should be considered an outrage if Taiwan is considered as a democracy. I am certain, for example, that the university lawyer would have been disbarred under principles of the US Bar Association. University officials would have been dismissed under ethical regulations and laws in the US. I am certain I would have been awarded considerable damages by a United States court for the university's willful and malicious misconduct, both to compensate me and to deter similar misconduct in the future.
But apart from retroactive salary, I received no compensation nor was the university required to pay punitive damages. I should add university officials were repeatedly warned by members of the Teachers Union and Ministry of Education officials that what they were doing was illegal (see attachments) but persisted in their misconduct anyway. Such willful, defiant, and malicious misconduct usually insures high punitive damages in US courts as a deterrent. Not only have I been denied compensation but the university has refused to apologize. Democracy in Taiwan cannot mature if this kind of misconduct is tolerated, without penalty or accountability.
Court rulings on this case are puzzling. The court never sanctioned university officials and instead of stopping the university's lawsuit contesting my rights under the Ministry of Education ruling (estoppel) actually heard the case, when it should have been dismissed on principle.
Presumably, the legal system is based on human rights and ethical principles and is not just a forum for any kind of claim! I can't take someone to court for wearing a black suit on the claim it depresses me! US lawyers are fined for bringing unprincipled cases to court.
Similarly, the court never punished the student, Chen An-chun, though I appealed at several levels. As I was told, the judge ruled it was "reasonable" the student believed she failed unfairly! But that's not why I took her to court! I took her to court not because she believed she failed unfairly but because she argued that as if it were a fact. The judge ignored "the preponderance of evidence," as it's known in US civil law: The student received three high passes from me apart from her failure. She accused me in secret. Her letter was solicited by a university official in order to be used in my dismissal. She accused me without proof. She accused me eight years after the class. Yet the judge found nothing wrong in her conduct!
The judge also ruled that Lily's accusation was not libel since it was not circulated outside the university. But all libel laws I know of state that a false accusation is libel if just one other person, apart from the person being defamed, hears it. If I falsely accuse Bob of being a thief and only Bob hears it, it's not libel. But if John hears it too, it's libel. But the judge ruled against me!
Finally the judge ruled against compensation on the basis that I did not have to stay in Taiwan to fight my illegal dismissal and therefore could not claim compensation for hotel costs, airplane fees, etc. when I renewed by visa every few months.
How could I have fought my case by moving back to the United States? As soon as I moved back the university would have held a hearing and insisted on my presence. When I flew back to Taiwan the university would have found a reason to delay the hearing, or held numerous other hearings. It would have cost me even more money.
Besides, another judge made a completely opposite ruling in a case of an American's attempt to gain custody of his child with a Taiwanese wife. Because the American returned to the United States in the meantime the judge ruled that proved he did not really love his child and awarded custody to the Taiwanese mother! In other words, "heads I win, tails you lose"! If I had returned to the United States the court might have ruled against me in the university case, because my return to the US proved I was not sincere about my attempt to fight my dismissal; or that I missed an appeal hearing and thus forfeited my appellant rights!
Apparently judges in Taiwan can rule either way. Does it seem reasonable that an appellant should leave Taiwan while fighting an illegal dismissal at a Taiwan university? A democracy is established on numerous rulings such as these; that's why US lawyers fight so hard for principles of human rights in American courtrooms.
That's why I can't let this case disappear. This is not just my issue; it concerns the future of Taiwan democracy, because democracy is established on thousands of daily rulings.
Besides, Taiwan citizens receive justice in the United States; moreover, rational judicial rulings discourage misconduct. I think an American citizen should receive justice (not merely legal rulings) in Taiwan.
I therefore ask for your assistance.
My question is what can be done with this case? Taiwan has recently signed international human rights charters, which insure remedy in human rights cases. There is also the Control Yuan, the Ministry of Education and other civil remedies. Please advise me.
Thank you.
Sincerely,
Richard de Canio
Tainan, Taiwan
(06) 237 8626
No comments:
Post a Comment