[Big read] China clamps down on Taiwan ‘secessionists’: Who’s implicated?

During a press conference on 21 June, the Taiwan Affairs Office (TAO) of China’s State Council announced 22 guidelines on imposing criminal punishments for Taiwan independence separatists and the incitement of secession, jointly issued by China’s Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, Ministry of State Security and Ministry of Justice. 

The guidelines are based on the country’s Criminal Law, Criminal Procedure Law and Anti-Secession Law. They define the organisation, planning and execution of separatist activities; promoting Taiwan’s legal independence; promoting Taiwan independence on the global stage and anything else related to Taiwanese independence as a criminal offence. According to their severity, these acts may be punishable by the confiscation of property, jail terms, life sentences and even the death penalty.   

In addition, trials in absentia with no statute of limitations for those who are outside of national borders have also been authorised.

The second part of the guidelines clearly defines four criteria for what constitutes the crime of secession. 

The first two criteria are: initiating or establishing a “Taiwan independence” separatist organisation, planning or formulating “Taiwan independence” secessionist action platforms, plans or programmes, or directing members of a “Taiwan independence” separatist organisation or any other persons to conduct secession activities or activities that undermine national unity; and through developing, amending, interpreting, or repealing relevant provisions on the Taiwan region, holding a referendum or other means, attempt to change the legal status of Taiwan as part of China.

The guidelines also define secession conduct as “promoting Taiwan’s membership in an international organisation restricted to sovereign states, or engaging in external official exchanges or military contacts, or other means, to create two Chinas, one China one Taiwan, or Taiwan independence”; and “wantonly distort or tamper with the fact that Taiwan is a part of China in the education, culture, history, news and media or any other fields, or suppressing a political party, group, or individual supporting the peaceful development of cross-strait relations and national reunification”.

Ni Yongjie, director of the Shanghai Taiwan Research Institute, told Lianhe Zaobao that the four criteria provided a clear definition of the circumstances under which non-peaceful means could be used against Taiwan, as outlined in Article 8 of the Anti-Secession Law.

Article 8 states that “In the event that the ‘Taiwan independence’ secessionist forces should act under any name or by any means to cause the fact of Taiwan’s secession from China, or that major incidents entailing Taiwan’s secession from China should occur, or that possibilities for a peaceful reunification should be completely exhausted”, mainland China shall employ non-peaceful means and other necessary measures to protect its sovereignty and territorial integrity.

There is a clear resonance between the four criteria and Article 8. Ni pointed out that the first two criteria of the guidelines correspond with the phrase “under any name or by any means to cause the fact of Taiwan’s secession from China” in Article 8; while a few criteria descriptions — “promoting Taiwan’s membership in an international organisation restricted to sovereign states, or engaging in external official exchanges or military contacts”, and “suppressing a political party, group, or individual supporting the peaceful development of cross-strait relations and national reunification” — correspond with Article 8’s “major incidents entailing Taiwan’s secession from China should occur, or that possibilities for a peaceful reunification should be completely exhausted”.

Ni believes that with the publication of the guidelines, mainland China has created a comprehensive set of measures on the political, military and legislative levels.

Chang Hung-yuan, an associate professor of international trade at Chihlee University of Technology and former deputy director of the KMT Mainland Affairs Department, said in an interview that the mainland issued the guidelines to criminalise secession activities under the Anti-Secession Law. By applying mainland criminal law to what Taiwan views as political expression, the mainland seeks to assert its jurisdiction over Taiwan.

He added that China might be laying the legal grounds for taking military action against Taiwan.

Chang observed that the guidelines were far-reaching in its definitions of behaviour constituting Taiwan independence secession, and one of the main reasons for the pushback across different segments of society in Taiwan. “When the mainland deems ‘promoting Taiwan’s international involvement’ as a criminal offence, it is extremely harmful for cross-strait relations,” Chang said.

He emphasised that Taiwan had joined international organisations without objection from mainland China in the past, and what had benefited relations across the strait is now deemed a criminal act. He added, “Isn’t this tantamount to destroying or removing the few bargaining chips in cross-strait political interaction?”

According to Chang, the 22 guidelines could have been issued on the assumption that the newly elected Taiwan President Lai Ching-te would be making further statements on Taiwan independence in the lead up to the US presidential elections. Hence, Chang expects the anti-independence rhetoric would be even stronger at the Third Plenary Session of the 19th Central Committee of the Chinese Communist Party in July.

The 22 guidelines have drawn criticism over the past weeks from the ruling and opposition parties in Taiwan. Both the Democratic Progressive Party (DPP) currently in power and the opposition Kuomintang have stressed that mainland China has no jurisdiction over Taiwan. Furthermore, DPP noted that a majority of Taiwanese could be identified as Taiwan independence separatists. 

In his speech at the DDP party committee meeting on 26 June, Lai Ching-te, who is also the party chair, said that more than 90% of the people of Taiwan may be affected, and reminded the public to be mindful of the risks if they travel to mainland China for business or tourism.

But during a regular press conference that morning, TAO spokesperson Zhu Fenglian stressed that the guidelines did not target the general public in Taiwan.

She reiterated, “The guidelines are clear from title to content, that the punishments target a very small minority of diehard Taiwan independence separatists who engage in vile separatist rhetoric and conduct, and rampant separatist activities, as well as their crime of secession and incitement of secession.”

As to who the punishments are aimed at, the guidelines further explain the first clause of Article 103 of mainland China’s Criminal Law, by demarcating three types of offenders: those who organise, plan or carry out secession activities or undermine national unity, those who commit serious crimes, and those who actively participate.

Those who “organises, plan and direct in Taiwan independence criminal organisations” have been defined as “ringleaders”; and those who are directly involved in the implementation of secession activities of separatist organisations and play an active role in the activities are deemed to have committed “serious crimes”.

Meanwhile, those who have repeatedly participated in separatist activities and played a principal role in Taiwan independence organisations, actively assisting the ringleaders in implementing and leading activities, are deemed “active participants”.

Shanghai Taiwan Research Institute’s Ni pointed out that the three types of offenders are the real targets of the punishments that take aim at political figures. Names in a list of top ten Taiwan independence diehard supporters that China had earlier released are believed to be the first to be targeted.  

Since 2021, China has released three lists of “diehard secessionists” with a total of ten names: Taiwan Vice-President Hsiao Bi-khim, secretary-general of the National Security Council Joseph Wu, deputy secretary-general of the National Security Council Lin Fei-fan, Defence Minister Wellington Koo, DPP caucus chair Ker Chien-ming, legislators Tsai Chi-chang and Wang Ting-yu; as well as former parliamentary speaker Su Tseng-chang, former legislative speaker Yu Shyi-kun, and former New Power Party chair Chen Shu-hua.

Hsiao Bi-Khim was blacklisted during her appointment as Taiwan envoy to the US under the Tsai Ing-wen government, and was twice singled out for additional sanctions. However, Lai Ching-te, who had proclaimed himself a “pragmatic Taiwan independence worker” is not on the list.

Wu Se-chih, director of the Taiwan think tank China Research Center, which has close ties to the DPP, told Lianhe Zaobao that the names on the blacklist showed that those deemed “diehard secessionists” by Beijing have some degree of fame, influence and power. This includes five Taiwan media personalities put on the list released in May this year, who are all perceived as opinion leaders.

Wu said that although Beijing had not explicitly labelled these personalities as “diehard secessionists”, the implication was clear. 

He believes that it remains to be seen if Beijing will follow the model of what was done during Hong Kong’s anti-extradition bill movement, and gradually expand the list of “diehard secessionists”. He said that as the list grows and coverage increases, ordinary people might also be implicated. 

According to the guidelines, ringleaders or those convicted of “serious crimes” can be imprisoned for life or for ten or more years. And those who have been convicted of causing particularly grave harm to China and its people, and where circumstances are particularly egregious, can be handed the death penalty.

This represents a significantly harsher penalty than previously. A comparison with Article 103 of the Criminal Law cited in the guidelines shows that the maximum penalty originally was a life sentence; likewise, the maximum penalty under the Hong Kong National Security Law implemented at the end of June 2020 is also life imprisonment.

Shanghai Taiwan Research Institute’s Ni explained that the introduction of the death penalty is a show of how seriously Beijing views the threat of Taiwan independence to national security. 

In addition, the third part of the guidelines, “Correct Application of Procedures”, authorises trials in absentia for cases involving Taiwan independence secession.

Zhang Qingbin, deputy director of the Major Crimes Department of the Supreme People’s Procuratorate of China, explained at the TAO press conference on June 21 that in case of offences that seriously endanger national security and require prompt adjudication, overseas defendants can be prosecuted in absentia in accordance to the law, with the approval of the Supreme People’s Procuratorate. 

The guidelines also state that for offences of a continuous or ongoing nature, the statute of limitation starts from the conclusion of the criminal act. After the case goes to trial, there will be no statute of limitation for defendants who evade investigations or trial. 

Sun Ping, deputy director of the Legal Affairs Bureau of China’s Ministry of Public Security, further explained this meant that the suspects would be held accountable for life no matter where they flee. 

Chihlee University of Technology’s Chang cast doubts on the guidelines, pointing out that they did not specify that the Taiwanese independence “diehard secessionists” had to be from Taiwan, and that they could be tried in absentia — implying that even foreigners could be indicted. 

He said, “So does this mean that someone can be arrested once they enter mainland China? Or, will Beijing be conducting the trial within national borders in absentia? Will it involve extradition? All of this is problematic.” Hence, Chang believes that the guidelines were formulated based on political considerations more so than meaningful legal enforcement.  

However, Ni of Shanghai Taiwan Research Institute feels that this simply means the guidelines apply to anyone who undertakes Taiwan independence separatist activities: “Even if they are Americans, as long as the evidence is solid, they will be sought out.”

Meanwhile, on 24 June, Lin Ting-hui, deputy secretary-general of the Taiwanese Society of International Law, surmised that Beijing might use overseas police stations to arrest the blacklisted persons outside of its national borders, and Taiwan should start to assess the risks in these countries accordingly.

In reaction to the release of the 22 guidelines, on 27 June the Taiwan government’s Mainland Affairs Council (MAC) raised the travel warning level to orange for travel to the mainland, Hong Kong and Macau, strongly recommending that its citizens avoid travelling there unless absolutely necessary.

During a regular press conference, Liang Wen-chieh, deputy head and spokesperson of MAC, stressed that it was the Taiwan government’s duty to issue the alert and warning, and it would not be prohibiting the Taiwanese public from travelling to the mainland, and members of the public are free to decide on their own travel plans. 

Liang stated that this was not a retaliatory measure against the mainland and would not reintroduce a cross-strait Cold War.

As to whether mainland China had issued cross-border warrants or demanded extraditions, Liang said that the majority of states that have extradition agreements with China have exclusion clauses for political prisoners, and that extradition can only take place if both countries agree on the conviction of guilt. 

He said that according to the Taiwan government’s preliminary evaluation, developed and advanced countries were unlikely to extradite those convicted of Taiwan independence secession to mainland China, but he did not discount the fact that there might be countries that would.

This article was first published in Lianhe Zaobao as “最重可判死刑 大陆惩独意见完备合法攻台？”.

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