EIGHT REASONS WHY CAPT GLEN AROZA OF INDIA CAN NEVER GET
                   JUSTICE IN TAIWAN

 I.     In our meetings wit...
“Article 155 The probative value of evidence shall be determined at the discretion
………of the court……..Evidence …….. having...
VII.    Article 5 of Taiwan Criminal Procedure Code states, "A court of the place
        where an offense is committed or...
proceeded at nearly full speed for 40 minutes in a north easterly course for 4.5
          nautical miles WITHOUT MAKING A...
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Eight Reasons Why Capt Glen Aroza Of India Can Never Get Justice In Taiwan

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Apathy of Member States of United Nations to which the individual mariners and Flag State of Vessel, Panama, India, Bangladesh, Phillipines and Japan.

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Eight Reasons Why Capt Glen Aroza Of India Can Never Get Justice In Taiwan

  1. 1. EIGHT REASONS WHY CAPT GLEN AROZA OF INDIA CAN NEVER GET JUSTICE IN TAIWAN I. In our meetings with Taiwan’s representatives at New Delhi we were given a very sympathetic hearing; innocence of Capt Glen Aroza was accepted in their body language if not in any positive response accepting our stand. It was highlighted to us that while at a personal level they empathized with Preetha’s (wife of Capt Glen Aroza) predicament, at an official level they were bound by the official stand of the President of Taiwan, already conveyed to us. It was not for them as Taiwan Government servants to discuss the vexed issue of high seas jurisdiction or the competence of the trial court in this matter involving a ship of Panama Flag State. Their body language and lack of eye contact gave away their discomfiture. In fact we could sympathize with their predicament as fellow human beings. They did not even make any assurance that our letter of appeal dated 22 July 2009 would be forwarded to MOFA, Taiwan; in fact the Ambassador declined to meet us citing the high sensitivity of the case. We have, however, no complaint against the handling of the case by Taiwan’s representatives at New Delhi, as domestic pressures in Taiwan dictate the course of events in Taiwan. II. In our meeting with the Ambassador of Panama on 22 July 2009 he expressed his helplessness in this case as he had no knowledge of it and also had no role to play. At best he said he would ask for the status of the case from his Foreign Ministry; if he receives any details he promised to forward them to us. Nothing was heard; on 30 July 2009 a new Ambassador took over and we are in the process of requesting him for a meeting on his return from Mumbai on 5 August 2009. III. The criminal justice system of Taiwan is undergoing massive reforms at the moment. However many learned commentators on the emerging criminal justice system conclude that despite the highly commendable reform process, the historical baggage of authoritarianism ensures that there now exists in Taiwan “ An Adversarial System that Lacks Adversaries”. {Taiwan’s New Adversarial System and the Overlooked Challenge of Efficiency-Driven Reforms, MARGARET K. LEWIS, VIRGINIA JOURNAL OF INTERNATIONAL LAW [Vol. 49:32009] TAIWAN’S NEW ADVERSARIAL SYSTEM}. “Unlike their American or British counterparts, Taiwan's legal professionals were not exposed in law school or at the Judges and Prosecutors College to evidence law concepts. It was assumed, utterly incorrectly, that Anglo-American evidence law could be picked up in a weekend seminar.” {Walking the Fine Line in Taiwan's New Criminal Code, BRIAN L. KENNEDY, Taiwan Review Vol.53 No.01 Jan. 2003} IV. In a missive to Preetha of 16 July 2009 the office of the President of Taiwan says “President Ma is not in a position to intervene in any legal cases as the judiciary must remain fully independent. Please be assured that any legal cases, including this one, will be adjudicated in open and fair court proceedings, regardless of nationality.” We pray and hope that this will come true. However we are not comfortable about “adjudicated in open and fair” because of two Articles of Taiwan Criminal Procedure Code:
  2. 2. “Article 155 The probative value of evidence shall be determined at the discretion ………of the court……..Evidence …….. having not been lawfully investigated, shall not form the basis of a decision. [COMMENT: Therefore, the judge may or may not accept the expert testimony, in his discretion, and if experts’ opinion was not accepted, who could set the safety standards?] Article 245 An investigation shall not be public. The defense attorney of an accused or suspect may be present ………such presence may be ….. prohibited. The public prosecutor……during the investigation shall not disclose whatsoever information…” [Taiwan prosecutor has conducted the entire investigation in highly secretive manner and even taken away original documents from the defence lawyer leaving no copy with the defence. The prosecutor all along misinformed NYK and Capt Glen Aroza that he was required as witness and sought his co-operation, which was given, but now manslaughter charges have been framed against him. What “open and fair court proceedings” the President of Taiwan is talking about in this kind of scenario?] V. According to Taiwan Justice Ministry website, administratively, prosecutors’ offices at all levels in Taiwan are subject to the supervision of the Minister of Justice. This lady works directly under the control of the President of Taiwan. In addition to directing, supervising and assigning prosecutorial and administrative affairs, the Prosecutor General is required to supervise all prosecutors, who possess the status of judicial officials, at different court levels of the whole nation. Prosecutors shall follow the orders and directions of their superior prosecutors. Being different from the authority of judges who conduct trials independently, prosecutors are bound by the orders of their superiors. The Prosecutor-General or the chief prosecutor may personally undertake the business assigned to a subordinate prosecutor. In a criminal proceeding, the prosecutors’ office, acting as the instigator of the action, and the court which is in charge of trial, are two opposing bodies with independent and separate functions. [That the President of Taiwan has the authority to have the case investigated and adjudicated in open and fair court proceedings by appropriate orders to the Minister of Justice and in turn to Prosecutor General of Taiwan is therefore within the well established Taiwanese constitutional norms; in view of the international uproar of miscarriage of justice in this case, it is high time the President of Taiwan / Minister of Justice / Prosecutor General of Taiwan inquire discreetly in the matter by examining Articles 5, 9, 270 & 304 of Taiwan Criminal Procedure Code and other Taiwanese legislations, as also all applicable international jurisprudence, in line with what the civilized world understands is due process of law, proper rules of evidence and an adversarial system which has functioning adversaries, unlike the present state of Taiwan criminal justice system highlighted in International and Taiwanese law journals referred above.] [http://www.slc.moj.gov.tw/ ct.asp?xItem=5954&CtNode=11186&mp=104] VI. Taiwan news media was the first to reveal to the World that the TOSA was intercepted by the use of forcible measures in International Waters by Taiwan Coast Guard and forced to proceed into Taiwan territorial waters and detained at Hualien Port of Taiwan. This is a blatant and unparalleled illegal act of use of force by a non member of the United Nations against vessels and individuals of United Nations member States. Continuing silence of the United Nations and all the concerned member States is both dangerous and shameful. It is also unacceptable to the seafarer and transport federations worldwide who have gone on a concerted offensive on the matter as of today.
  3. 3. VII. Article 5 of Taiwan Criminal Procedure Code states, "A court of the place where an offense is committed or where an accused is domiciled, resides, or is located shall have jurisdiction over the case. If an offense is committed on a vessel or an aircraft of the Republic of China outside the territory of the Republic of China, the court of the place where the vessel is registered or from which the aircraft departed or landed after the commission of the offense shall also have jurisdiction." Initially the prosecutor insisted that the “collision” occurred at about 0043 hours on 17 April 2009 in territorial waters and hence she claimed jurisdiction. The latest media reports as of 4 August 2009 in Chinese language are now giving the date of “collision” as 16 April 2009, whereas the Taiwan English media sticks to 17 April 2009 as the date of “collision” which is even now being stated in the media as having occurred in territorial waters. A detailed examination of the prosecutors indictment [File No.: 2009-chen-tzu-ti-1873] reveals that she has quietly shifted her stand on jurisdiction away from territorial waters to take support from Article 5 above, “ an offense … committed on a vessel or an aircraft of the Republic of China outside the territory of the Republic of China” without understanding that this clause only applies onboard a vessel flying the flag of Taiwan and under no stretch of imagination could this be extended to any vessel flying the flag of Panama upon the high seas. Hence there is no valid jurisdiction claim made in the indictment and in the ordinary course this would lead to dismissal of the case. But the surrounding circumstances of highly illegal detention on high seas do not inspire confidence that a proper decision on jurisdiction would be taken in consonance with international law in the facts and circumstances of the case. The irregular actions of the prosecutor are a pointer to support from the highest levels of the hierarchy as Taiwan law gives unfettered powers over prosecutors to the President of Taiwan / Minister of Justice / Prosecutor General of Taiwan as has been clearly elucidated above. As the previous Ambassador of Panama hinted to us this kind of matter could potentially even lead to open hostilities between Taiwan and concerned member States of the United Nations. Is this what is keeping the member States from opening their mouths and taking a stand? If so, may God save the United Nations. VIII. The fishing vessel, Shin Tomg Chyuan No. 86, that capsized was at all times closely accompanied by a second vessel of the same ownership, Shin Tomg Chyuan No. 82, before and after the passage of the TOSA at 2350 hours on 16 April 2009. This accompanying vessel never made any transmission till about 0030 hours on 17 April 2009. The capsize took place for unknown reasons at about this time at a point [25 50N 123 08E] 40 minutes away at 6 knots speed of these two fishing vessels away from their alleged spot of “collision” [25 46.232'N 123 5.186'E] at 2350 hours on 16 April 2009. That the fishing vessels never made any distress calls till about 0043 hours on 17 April 2009 is established by the initial questioning of TOSA by Taiwan Coast Guard asking its location at 0100 hours on 17 April 2009. Also the capsize is alleged by prosecutor to have taken place around 0030 hours only. It is very significant that the prosecutor has sanitized all mention of exact location of capsize from the indictment. This indicates a desire to conceal that these two fishing vessels
  4. 4. proceeded at nearly full speed for 40 minutes in a north easterly course for 4.5 nautical miles WITHOUT MAKING ANY DISTRESS CALLS. An unexplained capsize at 0030 hours or later found the Chief Engineer sound asleep in his cabin, as if nothing had happened (the TOSA was by now about 10 to 12 nautical miles removed) and the Chief Engineer went down in the sudden capsize – was it perhaps a one in a billion chance of yet another nuclear powered submarine suddenly surfacing to take bearings in this area claimed by Japan, PRC and ROC? We will never know. There have been over 30 reported incidents of collisions of nuclear powered submarines. [1961 Russia US submarines (USS Swordfish) collision 196? USS Skipjack (submarine) collision with Russian destroyer 15 Oct 1965 2 nuclear submarines collision Jul 1965 USS Medregal(submarine) collision with Greek freighter. Mar 1966 USS Barbel (submarine) collision with freighter near North Vietnam. Dec 1967 Russia US submarines collision 19 Oct 1968 Russia NATO submarines collision Nov 1969 Russia US submarines collision 14 Mar 1970 Russia US submarines collision Jun 1970 Russia US submarines collision Mar 1971 Russia US submarines collision Mid-1971 Russia USS Dace submarines collision Late 1971 or early 1972 USS Puffer (submarine) collision with Russian submarine May 1974 US submarine USS Pintado collision with Soviet missile boat 3 Nov 1974 Russia US submarines collision 28 Aug 1976 USS Vogue collision with Soviet submarine Late 1981 HMS Sceptre (submarine) collision with Soviet submarine 3 Oct 1986 Russia US submarines collision 24 Dec 1986 HMS Splendid (submarine) collision with Soviet submarine 11 Feb 1992 Russia submarine collision with USS Baton Rouge 20 Mar 1993 Russia US submarines collision 11 Feb 1998 US submarine sank South Korean fishing boat 19 Mar 1998 2 US submarines collision 12 Aug 2000 Russia US submarines collision 9 Feb 2001 US submarine collision with Japanese training fishing vessel Ehime Maru 8 Jan 2005 US submarine collision with underwater mountain Sep 2005 US submarine collision with Turkish cargo ship 10 Nov 2005 Japanese navy discovered a PRC nuclear submarine in Japanese territorial waters near Okinawa 8 Jan 2007 US submarine collision with Japanese M.T. Mogami Gawa 7 Jan 2008 Indian submarine collision with M.V. Leeds Castle 3 Feb 2009 UK France submarines collision 20 Mar 2009 US submarine collision with USS New Orleans 23 Apr 2009 PRC Unveils New Fleet of Nuclear Submarines 11 Jun 2009 PRC submarine collision with USS John S. McCain (Chinese coast)]

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