Foreigners have human rights too
By Hsia Hsiao-chuan and Cheng Shih-ying 夏曉鵑，鄭詩穎
On June 26, members of civic groups gathered outside the Control Yuan to protest the human rights problems in the National Immigration Agency’s detention centers. They also asked the Control Yuan to investigate the issue. Unfortunately, only a few reporters were interested enough to attend the event.
One human rights worker involved with immigrant-related issues said nobody was interested in such a marginal issue, especially when the comings and goings in the legislature prior to an election are so much more interesting. In short, the impression given is that most people believe those detained by the immigration agency are guilty and that the issue is not deserving of their attention.
However, this is not true. Take the case of Chichi, an immigrant worker from Indonesia. Chichi was being treated harshly by her employer and switched employers without following the necessary legal procedures.
She was caught less than six months later and locked up in a detention center on charges of being a runaway foreign worker, without any indication of how long she would be detained before being allowed to return home.
Another example is the case of Hsiao Lien, from Vietnam, who was having problems with her Taiwanese husband. After an altercation in which both parties were physically hurt, her husband immediately had his wounds examined and recorded and then sued Hsiao Lien for causing him bodily harm and for fraud — the latter because he had paid for her airplane ticket to Taiwan.
When the verdict was finally delivered, Hsiao Lien had been detained for more than nine months, much longer than the three month sentence she received for the causing bodily harm. She was acquitted of fraud.
Changing jobs because one has a bad employer or getting divorced because one feels one is not married to the right person are common human experiences. However, when blue-collar migrant workers and those who emigrate to Taiwan from Southeast Asia and China to marry encounter such problems, they face the very real risk of being locked up in detention centers that are no different to prisons.
Regulations stipulate that the time a person is detained can be subtracted from the length of any jail term they receive once the charges filed against them are confirmed. However, in cases like Hsiao Lien’s, where she was detained much longer than the sentence, the government does not pay compensation.
Even worse, some detainees are merely witnesses to a case, yet they frequently have their freedoms infringed upon, in some cases for as long as a year.
Freedom is a basic human right protected by the Constitution, which is exactly why there exists a set of strict legal procedures governing detention.
For example, after prosecutors question the accused and if it is deemed necessary to detain him or her, a detention order must be applied for within the 24 hours the prosecutors are legally allowed to hold someone.
If the court believes there is a high probability the accused is guilty and evidence is presented that he or she could destroy evidence, collude with others or flee, the court can order the accused be placed in detention.
However, these legal protections do not apply to foreigners in detention centers. The only legal basis for foreigners to have their freedom of person restricted is Article 38 of the Immigration Act (入出國及移民法) which reads: “The detention stated in the preceding paragraph shall not exceed sixty (60) days; if necessary, however, the National Immigration Agency can prolong the period of detention until the alien is deported from the State.”
But what exactly is meant by “if necessary?” Is it really necessary to detain witnesses who are helping the authorities with their investigation? Is it really necessary to restrict the freedoms of those who break the Immigration Act by overstaying their residency?
The agency’s detention centers for foreigners should detain only those guilty of administrative offenses by breaking the Immigration Act and hold them only temporarily before repatriating them.
If a foreigner is suspected of being guilty of a crime and presents a flight risk, -prosecutors should apply to have that individual placed in detention in accordance with the Code of Criminal Procedure (刑事訴訟法) and only after a court decision to that effect.
However, when foreigners are involved in a case, prosecutors do not follow the legal procedures required to have someone placed in detention as detailed by the Code of Criminal Procedure, but rather send them to one of the agency’s detention centers. The agency facilitates this through an unspoken consensus that foreigners can be detained and their freedom of person restricted in this way.
On occasion, witnesses are sent to detention centers simply to make an investigation easier for a prosecutor.
For many years now, civic groups in Taiwan have petitioned and protested the issue of foreigners being improperly detained to the government agencies involved.
However, despite all of its talk about respecting human rights, the government has yet to do anything about this problem.
With the exception of slogans that speak to its high opinion of itself, the government has so far done nothing to protect the human rights of foreigners who are detained.
Hsia Hsiao-chuan is a professor at and the director of the Graduate Institute for Social Transformation Studies at Shih Hsin University. Cheng Shih-ying is a social worker at TransAsia Sisters Association of Taiwan.
Translated by Drew Cameron
Adopted from : Taipei Times Mon, Oct 24, 2011