by Yu-jie Chen
Taiwan’s President Tsai Ing-wen’s pledge last week to set up a “humanitarian action plan” for Hong Kong reflects a very positive step Taiwan is taking in providing refuge to Hongkongers persecuted for exercising their freedoms. Taipei is reportedly discussing details of the plan, which are expected to be released soon.
Action plan aside, there is a separate question on whether Taiwan’s existing legislation can adequately provide political asylum to Hongkongers who are facing persecution but do not have the means to immigrate to Taiwan. Unfortunately, current legislation is seriously inadequate in substance.
The legal basis in question is Article 18 of the Republic of China’s Act Regarding Hong Kong & Macao Affairs (the Act), which states that “necessary assistance shall be provided to Hong Kong or Macau residents whose safety and liberty are immediately threatened for political reasons.” The current practice under this provision is for Taiwan’s executive branch to determine whether to grant “necessary assistance” in individual cases.
Article 18 of the Act is commonly known as Taiwan’s political asylum clause for Hong Kong and Macao people, but it is far from a well-established political asylum mechanism.
Article 18 does not offer specifics as to how to process asylum applications, for example, what the standards for asylum should be, how long the process should take, whether there should be judicial relief, what resources asylum seekers should receive, and where funding should come from.
Without specifics, the process under this provision can be very uncertain and hard to monitor from the outside. In addition, there is not much legal restraint on the government’s extensive discretion as to whether to grant asylum.
In light of this, some Taiwan legislators have proposed revising Article 18 of the Act to resolve some of the questions and clarify relevant processes to improve government accountability, as well as offer protection for Hong Kong asylum seekers.
The alternative would be for Taiwan to enact a refugee law that applies not just to Hongkongers but to asylum seekers of all nationalities.
Yet, while advocacy for refugee law in Taiwan began as early as 2006, passing the bill has proved to be tremendously difficult. Some of the obstacles are not that different from concerns other countries have about in taking in refugees, including having enough resources available and its potential impact on society.
Other obstacles relate to concerns — that appear to be greatly exaggerated — about mainland Chinese asylum seekers seeking intelligence for Beijing.
Many advocates and scholars would like to see Taiwan finally enact a much-needed refugee law, in accordance with international human rights law and humanitarian law. They would also like to see this law applied not only to foreigners but also, by analogy, to people from Hong Kong and Macao, as well as mainland China.
Given the lack of progress in legislating a refugee law, however, the more surgical method would be to revise only Article 18 of the Act. This would be relatively feasible and timely in providing necessary relief to Hongkongers.
It is, nevertheless, unclear whether at this point President Tsai Ing-wen’s administration, despite its Hong Kong “humanitarian action plan,” actually supports either enacting a refugee law or revising Article 18 of the Act.
When asked about Article 18 last week, Taiwan’s Premier Su Tseng-chang said that there is no need to revise this clause. This is very disappointing.
Without necessary legislative protection, the “humanitarian action plan,” while an improvement, will likely still leave Hong Kong asylum seekers facing uncertainties, and the mechanism of asylum will continue to lack transparency and predictability. Revising relevant legislation is necessary for institutionalising and refining the asylum processes.
A poll conducted last week shows that 60.3 per cent of Taiwanese favour revising relevant legislation, including the Act and a refugee law, to assist Hongkongers, while those opposed are only 28.4 per cent.
This confirms that the Taiwanese public is very sympathetic towards Hongkongers, which is natural, given our common challenges and shared concerns about the erosion of freedoms and liberties in our respective societies.
A note of caution should be added, however, that when it comes to implementation, various second-order, more difficult questions will surface, just as they have during the debates about a more general refugee law.
For example, how many asylum seekers can Taiwan accommodate? How will Taiwan provide resources for them, including education, employment, medical care, and social welfare? Will there be well-thought-out measures to make Taiwan a second home for Hong Kong asylum seekers?
As we consider these questions, I hope Taiwan society will remain open-minded, make principled decisions and open the doors to Hongkongers in need.
Yu-Jie Chen, a Taiwan lawyer, is a global academic fellow at Hong Kong University’s Faculty of Law and an affiliated scholar at New York University’s US-Asia Law Institute.