Both the mainland and Taiwan are governed by outmoded constitutions. On the mainland, despite the conservative climate, reformers continue to advocate progress in local elections, government transparency and judicial autonomy. In Taiwan, despite significant political reforms of the past two decades, issues such as relations between the president and the Executive Yuan, tensions between the Supreme Court and the Constitutional Court, and optimal resort to referendums are unresolved.
One institutional question that has received too little attention on both sides of the Taiwan Strait is the role of independent investigative commissions. Yet, events may be moving it up the agenda in each place. Last week, the United Nations Committee Against Torture, in evaluating Beijing's compliance with the Convention Against Torture, repeatedly stressed the mainland's 'lack of an effective mechanism for investigating allegations of torture as required by the Convention'.
The committee recommended that Beijing establish an 'independent oversight mechanism to ensure prompt, impartial and effective investigation' into all such allegations. Of course, the mainland already has institutions, including the procuracy, people's congresses and Communist Party discipline inspection commissions, to investigate abuses of the criminal process.
In practice, however, they have not been impartial, independent and effective in exposing the pervasive torture problems. Nor can non-governmental organisations effectively inquire into criminal procedures, and the media and legal profession are not consistently allowed to support such efforts.
The past two weeks in Taiwan have witnessed a flurry of discussion concerning the feasibility of establishing a temporary commission to impartially investigate issues of public protest, police control and criminal prosecution that arose during the contentious visit of mainland official Chen Yunlin . My previous column, published on November 13, suggested that Taiwan's president, Ma Ying-jeou, appoint an ad hoc independent commission of experts to examine claims that corruption prosecutions of present and former officials during the Chen Shui-bian and Ma Ying-jeou administrations may have been politically inspired or 'selective'.
This stimulated a range of responses in public and private. Some Taiwan experts in criminal justice favoured the idea as a way to boost popular understanding and confidence in the integrity of the prosecutorial system, and create momentum for reforms.
Some leaders of the opposition Democratic Progressive Party were also enthusiastic about the proposal. But other DPP supporters denounced it as 'naive' because no commission appointed by the again-dominant Kuomintang had ever been independent.