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

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. “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. 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. 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)]