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.
Last Thursday, Freedom House, an influential Washington-based NGO, urged 'Taiwan's government to create an independent commission to thoroughly investigate clashes between police and activists protesting [against] ... Chen Yunlin's historic visit and recommend needed reforms'. It also urged a re-examination of Taiwan's Assembly and Parade Law. The same day, the Paris-based International Federation for Human Rights, in a stern letter to Taiwan's leaders, denounced the police for arrests and violence it said were grave violations of human rights against peaceful protesters, under the pretext of national security. It demanded impartial investigations by both the Judicial Yuan and the Control Yuan.
On Saturday, the presidential spokesman, Wang Yu-chi, dismissed suggestions for an ad hoc impartial commission as unnecessary and implied that they would raise constitutional questions.
Yet it is difficult to believe that the Council of Grand Justices, Taiwan's constitutional court, would deny the Executive Yuan, or the Control Yuan, the power to appoint a temporary commission of independent experts to assist its investigation of police and prosecution conduct. Also, despite the council's ruling that limited the legislature's investigative power into the March 19, 2004 attempted assassination of Taiwan's president and vice-president, the legislature, too, may be able to authorise a carefully confined independent commission.
The Grand Justices, many of whom are familiar with comparative law, surely know that, in the United States, the Warren Commission inquiry into president John F. Kennedy's assassination and the 9/11 Commission, as well as numerous royal commissions in Britain, have made useful contributions to democracy.
Unlike on the mainland, in Taiwan there are no obstacles to the creation of a civil society investigation group of independent and impartial criminal justice experts. Any government department that failed to co-operate with such a commission would be roasted in Taiwan's free media and free political process.
On Monday, civil society groups and academics pressured the Control Yuan to launch a probe into alleged police misconduct during Chen Yunlin's visit. If doubts persist about the fairness of corruption prosecutions, the Control Yuan can extend its inquiry into that aspect of government integrity as well. If the Control Yuan fails to exercise its responsibilities, civil society groups and academics can launch their own investigation.
Jerome A. Cohen is co-director of NYU's US-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations in New York