Case at NATIONAL CHENG KUNG UNIVERSITY

This blog exposes human rights violations committed by National Cheng Kung University in Tainan, Taiwan. Documents are in English and Chinese.

Tuesday, May 24, 2011

Legal Brief of Court Rulings in National Cheng Kung's Illegal Dismissal (1)

Posted by Human Rights at a Taiwan University at 9:30 AM

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About Me

Human Rights at a Taiwan University: I formerly taught at National Cheng Kung University in Tainan, Taiwan. I was illegally dismissed in 1999 and won an appeal at the Ministry of Education in Taipei in 2001, but the university refused to enforce that ruling for nearly 2 1/2 years. Since then the university has neither compensated me nor apologized for human rights abuses, which included circulating a secret letter at committee hearings, constantly changing its reasons for the dismissal action, claiming that foreign teachers are not protected by the Teacher's Law that protects Taiwan teachers, and then, despite participating in appeal hearings at both the university and MOE levels, saying that foreigners had no right to appeal. Despite these violations National Cheng Kung University maintains numerous academic exchanges with universities in the US and in other democracies.

View my complete profile

Summary of Human Rights Abuses at National Cheng Kung University in Tainan, Taiwan

SUMMARY HISTORY OF HUMAN RIGHTS ABUSES AT NATIONAL CHENG KUNG UNIVERSITY

Despite being a high-ranked university in Taiwan, with numerous academic exchanges abroad, such as with Purdue University in the US, National Cheng Kung University (NCKU) has a long history of human rights violations without channels of remedy.

In 1994 bogus student evaluations were used to start a dismissal action against me in the Department of Foreign Languages and Literature (FLLD). This was overturned by a single vote.

Despite the impropriety of using unsigned student evaluations the department chair was never punished, encouraging further violations.

Predictably, in 1999 I was again dismissed. The documents related to that dismissal are included on this blog.

Bogus accusations were used. These were never investigated. I did not learn of them until after the first dismissal hearing!

When these accusations were challenged by members of NCKU's Teachers Union, a secret letter was solicited and circulated at "review" and "appeal" hearings to insure my dimissal.

I never saw the letter. At one "hearing," three times I asked the chair to inform me of the letter's contents. He stared silently each time. A committee member sympathetically interjected a summary of the letter.

I saw the letter years later when I sued the student who wrote it. She claimed, without proof, I failed her unfairly eight years before.

Neither the courts nor the university punished the student. In fact she received a Master's and Doctorate at the university. Her committee was made up almost entirely of faculty members who defended her letter, though she had no proof except her claim, made her claim in secret, and eight years after the disputed grade. She has a part-time position teaching at the university, a role model for the next generation of college graduates and citizens, shaping the future of Taiwan democracy.

The university's "appeal" process was bogus, a charade to delay the case, to outlast me or my visa. Committee members closed ranks to protect colleagues involved in misconduct rather than protect the appellant, as was their duty. The purpose of "oversight" committees is lost if those committees cover up mistakes instead of correcting them.

In December 1999 the university canceled my dismissal. But it argued foreigners were not protected by Taiwan's Teachers Law, so returned the case to the department as a hiring rather than a dismissal action.

In NCKU "Newspeak" an appeal cannot favor a foreigner, though foreigners can appeal. After insidious cycles of "review" and "appeal," I appealed to the Ministry of Education.

University officials attended Ministry appeal hearings in Taipei, but after it lost the Ministry ruling, dated 8 January 2001, the university claimed foreigners had no right to appeal and refused to enforce the ruling. Instead it filed a lawsuit to contest my employment.

Such duplicity is tolerated by Taiwan's courts, which apparently don't recognize legal principles such as estoppel (a party cannot contradict a previously uncontested claim, in this case, my right to appeal). Without such principles the court is not an adversarial or inquisitorial means to establish truth, but a test of tenacity and duplicity, regardless of the truth. I knew of one legal aid who seemed to believe the court allows the constitutional right to lie!

Her claim may have been true, since the court allowed the university to claim I had no right to appeal even though it held appeal hearings and attended them in Taipei! One would think, in a just society, the court was a forum for truth, not for lies.

Based only on experience with my case, Taiwan's judicial rulings failed to exercise an exemplary, deterrent, or even compensatory aims, principles of of democratic jurisprudence. What kind of example does a court set merely telling officials involved in grievous and obstinate human rights abuses to reinstate the appellant, with neither a compensatory settlement for the appellant nor punitive damages against the university?

Such rulings are not judicial, as commonly understood, based on principles of rights, but more like arbitration, as if both parties were right. The aim is a practical resolution rather than a principled resolution. Such rulings are similar to some tribal cultures where, if a woman is raped, the rapist is forced to marry the woman, which is what he wants anyway.

Lack of legal principles jeopardize judicial rulings, along with punitive and compensatory awards. In this instance the court had to uphold the Ministry of Education's Appeal ruling or it would have undermined the law of its own government.

But the court neither set an example nor deter future abuses. The university was not punished or, to my knowledge, admonished, apart from the issue of reinstatement. Rulings avoided punitive, compensatory, or deterrent judgments.

The prosecutor rejected my libel suit on the basis false accusations did not circulate outside the university. But all libel or slander statutes I know call falsehoods actionable if a single person, apart from the discredited party, reads or hears them. Indeed, such accusations would have done less harm to me outside the university than inside, among my colleagues, where the accusations insured my dismissal and defamation! Even today students tell the rumors they heard at the university discredit me.

A court dismissed my case against the student on the basis her letter did not cause my dismissal. Yet it was solicited and circulated for that purpose. So far as I know, the student wasn't even chastised for writing it.

In Taiwan's inquisitorial system, her implausible excuses and the preponderance of facts against her were ignored. Forget the absurdity of complaining of a grade eight years after the class, in secret, and with no proof. Why, if a student thought she failed unfairly the first semester would she continue the course the second semester? Why would a teacher who failed a student unfairly the first semester pass her the second semester? Why would a teacher unfairly fail a student in one class but give three high passes the same year? Why would a student wait eight years to write her letter? Why would the letter be secret?

The student claimed she feared me, so sat in the back of the failed class. Yet she had to interact with me in an ESL class the same year!

In court testimony she claimed not to remember taking that class. How can a student remember taking one class but not another the same year? How can she remember an exam that lasted 2 hours but not a class that lasted 108 hours (3 hours weekly, 18 week semesters)?

It was convenient not to remember a class where she received two high passes and was required to engage in constant talk with a teacher she claimed to fear!

She also claimed someone advised her not to respond to a letter in which, after hearing gossip, I promised to locate her exam in my office. I still have that letter; the student never denied receiving it.

Why would a student who disputes a grade not seize the chance to prove her claim against her exam, unless she knew the exam would discredit her claim; and unless she assumed I had her exam, which contradicts her claim I destroyed it?

If she were certain I destroyed her exam she would have called my bluff and asked for her exam back. If she were certain she did well on the exam she would have called my bluff and asked for her exam back. Apparently (1) she couldn't be sure I still had her exam, which discredits her claim I said I destroyed it, and (2) she believed her exam would discredit her claim she did well on it.

An adversarial system, or at least a fact-based inquisitorial system, would have undermined the student's credibility, even if, in view of a complaint eight years late, without proof, and in secret, the student had credibility to begin with. In an adversarial system, the student would have had to explain why she didn't contest her grade immediately, or, if she did, why officials didn't act on the complaint.
From my understanding, an official claimed I told him I destroyed her exam. I dispute that claim. But it's admittedly "he says, she says." However there's reasonable proof in my letter offering to locate her exam, which she ignored. The irony is, accusing me of misconduct, the official admitted misconduct by not acting on the student's complaint.

Regardless of the preponderance of evidence against her, the student escaped punishment. Indeed, the Taiwan courts did not punish a single university official, despite numerous human rights violations detailed in the Ministry of Education ruling dated 8 January 2001 (q.v.).

Nor did the courts impose punitive damages, despite repeated violations by university officials, thus ignoring its deterrent function, a primary goal of judicial rulings.

Such rulings encourage similar actions in the future, as if to say, "It's okay to violate a professor's rights in Taiwan. You have nothing to lose."

But the appellant will lose, unless he's willing to suspend his academic career for years contesting an illegal action, with no hope of remedy.

Such rulings impact on education. Because faculty will not act conscientiously to insure academic standards, whether in promotion, grading, research, or curriculum, unless their legal rights are guaranteed and officials deterred from arbitrary or malicious actions.

The courts did not even award compensation, such as for travel and accommodation costs to renew my visa while contesting the dismissal. The courts argued there was no need to have stayed in Taiwan during my appeal.

How else could I have contested the dismissal? If I had returned to the US a court could have ruled I forfeited my rights by not attending a scheduled hearing! Indeed, an American father lost custody of his child with its Taiwanese mother because a court ruled by returning to America the father showed no interest in the child! In other words, "heads you win, tails I lose."

Taiwan sends equivocal signals, at least to foreigners. It gives the right to litigate but undermines that right in its judicial rulings. In principle there is remedy, in practice there is none.

In a Shakespeare play a character boasts he can call the dead from their graves. Another character sarcastically ripostes, "I can call the dead too. But will they come?" In Taiwan, a foreigner can sue university officials. But will he win?

Recently a Taiwan colleague sued a Taiwan student for defaming him on the student BBT (BBS). He received NT$150,000 and a written apology. Those involved in my dismissal did far more damage to my academic career, interrupting it for four years, or five, since my first year back I was given leftover classes.

Even worse, the injurious gossip, which the courts said did not circulate outside the university, continues to the present. Several students have informed me they heard about the student issue and the gossip favored the student. One comment was posted on Facebook as recently as August 2010 (q.v.)!

But the courts excused offiicals of punitive and compensatory liablity. Yet they were not merely involved in technical errors or oversight. They conspired to dismiss a colleague and, though repeatedly warned by members of the Teachers Union, persevered in their course of action even when repeatedly censored by officials outside the university, such as in the Ministry of Education ruling and subsequent warning letters (q.v.).

After that ruling the university continued its dismissal "hearings" as if the university were a law unto itself. It ignored ten warning letters from the Ministry of Education (q.v.), which plainly spelled out my legal rights and the university's violations, including cited laws.

In the meantime the university president, Kao Chiang, assigned two officials to extort my resignation from the university, despite the Ministry ruling in my favor. The officials warned if I did not resign the university would interminably delay the case in the courts. They offered a half pay settlement.

Even two letters from the human rights group now based in New York, SCHOLARS AT RISK (q.v.), had no effect on the university president. As court rulings show, officials are encouraged to believe they are above the law, or at least outside the penalties of the law. After defying the Ministry of Education for nearly two and a half years (see MOE letters), Kao Chiang was approved for another three-year term.

The result is the university has never apologized for its illegal dismissal, nor acknowledged wrongdoing in the case. As late as March and May of 2011 the university posted two commentaries on its web site that completely exculpate the university and imply I was involved in wrongdoing (q.v.)!

This is part of the university's revisionist history that is represented in a Wikipedia edit on the NCKU page, where a user claims this case never happened and, against Ministry and court rulings, claims foreigners were not protected by Taiwan's Teachers Law at the time! As if that admission in itself didn't discredit the university, which had already established long-standing academic exchanges with American universities.

The lack of appropriate penalties by the courts has emboldened NCKU officials to the present day. The problem is complicated not only by courts that avoid deterrent rulings, but by a largely silent faculty, which has ignored my numerous email appeals to them, including full documentation, as included on this blog. As the saying goes, "Democracy is not what you have, it's what you do." If the educated franchise in Taiwan don't "do" democracy, who will?

Despite almost daily attacks on the lack of democracy in Mainland China, the Taiwan media have mainly avoided this case, though it involves a major university in a chronic history of corruption. Compare this with the case at a Hong Kong university in 2000, which was headline and lead-in news for days and involved prompt and material administrative remedy(http://en.wikipedia.org/wiki/Robert_Chung).

Though I have repeatedly emailed letters about this case to the English-language newspapers in Taiwan, none to my knowledge has been published. Since these papers have an international circulation and are online, perhaps the papers fear US officials in the Taiwan lobby might read about a case that discredits Taiwan's democracy.

Only two or three Chinese newspapers have briefly reported this case, without exploring the major legal rights issues involved. Numerous emails sent to the Control Yuan, Ministry of Education, and Taiwan's premier and president are routinely acknowledged by robot mail.

So-called "legal rights" groups in Taiwan have been of no help in a case that involves a high-ranked university in serious rights abuses. Ironically, a human rights group from Chicago (now New York), SCHOLARS AT RISK, thousands of miles away, promptly sent two strong letters to the university president.

The state of human rights in Taiwan can be gauged by a legal aid group that recently advised me to contact President Obama about my case! As if human rights in Taiwan were the responsibility of an American president rather than of Taiwan people. As if the US president had nothing to do but to insure human rights at a Taiwan university.

One would think human rights and legal aid groups in Taiwan would commit themselves to these issues. Americans establish human rights protections for Taiwanese and other minority groups; Taiwanese should do the same, if only on the principle of reciprocity.

This is not an issue of passivity or indifference. When Taiwan dignity was at stake, as in the recent taekowondo incident involving a Taiwan athlete in South Korea, Taiwanese became vocal. The Internet and media buzzed with talk of boycotts. Youtube protest videos circulated. A Taiwanese threw rocks at a South Korean children's school in Taipei.

These same citizens shrug at university officials who egregiously defy Ministry rulings and who shamelessly go to court contesting the rights of an American citizen, even as they engage in "mutual" exchanges with American universities, and, ultimately, expect American citizens to die for their independence.

A recent incident at a California university, where a non-Asian student seemed to ridicule Asians in a youtube video, underlines the difference between activism in the US and in Taiwan. Within hours the university closed ranks against the student and the university president made a public statement deploring the video. Although she violated no rights, student and faculty condemnation of her behavior forced her to quit the university.

The only faculty support I received have been a few emails such as "I feel sympathy for you" and "Wish I could help." In Mainland China they stand up to tanks, in Taiwan they don't stand up to a university official.

Mandatory courses on constitutional principles should be part of the university curriculum here. There should be more focus on democracy than on independence. Presumably the goal of independence is to insure democracy.

Democracy is misunderstood even among the educated franchise. One NCKU dean defended the university's dismissal by protesting, "We have a lawyer!" I told her, "Democracy is government by law, not by lawyers." Common sense should tell her both sides in an adversarial system have lawyers, but only one side wins. Analogies are tendentious, but gangsters have lawyers too.

Some colleagues think committee members make laws rather than enforce them. In a culture of relationships there is as much danger of a cult of personality here as in Mainland China during Maoist times. Hence the habit of superior committees rubber stamping decisions of lower committees, undermining the inquisitorial principle of appeal, which must look for mistakes, not complacently assume there are none since friendly faces make up the committee.

Some colleagues think of democracy as a franchise, not as a framework for rights and laws. One student defined democracy as doing what one likes! That is the misguided view of democracy one gets among officials at National Cheng Kung University.

Academic and cultural exchanges between nations can only take place on the basis of mutual respect, not evident in the university's misconduct or in court rulings on my case. Not one human rights group in Taiwan has responded to my request for aid.

Several years ago National Cheng Kung University students were caught illegally uploading copyrighted music. Within hours Taiwan lawyers volunteered pro bono assistance to those students.

I find it odd that Taiwan lawyers promptly volunteered pro bono assistance to students who broke the law but, in thirteen years, not a single Taiwan lawyer has volunteered to take my case to uphold the law!

The Latin words "pro bono" mean "for the good (of the cause)." Taiwan lawyers seem to think that Taiwan students who illegally upload copyrighted music have a more worthy cause than an American teacher who is illegally fired. That's no way to advance law and human rights in Taiwan.

American legal aids volunteer their services to immigrant residents in America who find themselves in legal straits in cases more complicated than mine. Yet there is no attempt in Taiwan to reciprocate treatment to Americans.

English-language newspapers have repeatedly declined to publish letters exposing my case. But within hours of the taekowondo incident Taiwan's press and the Internet bubbled with outrage over the perceived injustice suffered by a Taiwanese citizen and the athlete was promptly offered free legal assistance.

I don't understand the disparity in handling these cases. The Taiwan people are given voice in the American Congress, despite many issues the American government is faced with daily. Yet not a single Taiwan legislator has voiced my case. Apart from law, how is the principle of reciprocity honored in Taiwan?

Democracy should mean something more than that anyone can get elected, regardless whether they respect laws and human rights. The sad fact is democracy may never take root in some places because citizens think they already have it.

Labels

A Few Good Changes (1)
Aesop (1)
Bilingual Letter to Faculty about False Student Accusations (1)
Bogus Plagiarism Accusation (1)
Bogus Student Accusation (1)
C. C. Chang (19 May 2003) (1)
Case Summary (1)
Case Verdict (News) (1)
Censorship (1)
Censorship in Taiwan's English-Language Press (1)
Chronicle of Human Rights Abuses at NCKU (1)
Court Verdict (1)
Democracy in Taiwan (1)
Documents and Letters (1)
Explaining an "Explanation" (1)
False Curriculum Claims at NCKU (1)
First Illegal Dismissal (1994) (1)
Internet Post 8 August 2010 at 2:49am (1)
Legal Brief 1 (1)
Legal Brief 2 (1)
Letter from Dean of Student Affairs 28 February 2002 (1)
Letter from FLLD Chair (1)
Letter from University Secretariat (21 December 2007) (1)
Letter Regarding NCKU's Whitewash of my Illegal Dismissal (1)
Letter to a Colleague Concerned about Rights in Mainland China (1)
Letter to Academia Sinica (2)
Letter to Advisory Council for Human Rights (1)
Letter to Asian Forum for Human Rights and Development (FORUM-ASIA) (1)
Letter to Asian Research (1)
Letter to Dean of Student Affair (13 October 2003) (1)
Letter to Dean of Student Affairs (10 July 2003) (1)
Letter to Dean of Student Affairs (11 March 2002) (1)
Letter to Dean of Student Affairs (15 February 2004) (1)
Letter to Dean of Student Affairs (15 July 2003) (1)
Letter to Dean of Student Affairs (16 September 2003) (1)
Letter to Dean of Student Affairs (18 March 2002) (1)
Letter to Dean of Student Affairs (22 July 2003) (2)
Letter to Dean of Student Affairs (26 June 2003) (1)
Letter to Dean of Student Affairs (9 October 2003) (1)
Letter to Dean of Student Affairs (9 September 2003) (1)
Letter to Formosa Foundation and US Representatives (1)
Letter to Green Island Human Rights Memorak Park Staff (1)
Letter to Humanistic Foundation (19 February 2004) (1)
Letter to Judicial Reform Committee (4 Oct 2001) (1)
Letter to Judicial Reform Foundation (8 June 2010) (1)
Letter to Kaohsiung City Council (1)
Letter to Ministry of Education (6)
Letter to Ministry of Education (5 July 2011) (1)
Letter to Russell Hsiao (1)
Letter to Scholars at Risk (1)
Letter to Scholars at Risk (2) (1)
Letter to Student About False Accusation (1994) (1)
Letter to Taipei Times (1)
Letter to Taipei Times (19 September 2005) (1)
Letter to Taiwan and American Universities (1)
Letter to Taiwan Association for Human Rights (2) (1)
Letter to Taiwan Association for Human Rights (2003) (1)
Letter to Taiwan Colleagues (1)
Letter to Taiwan Today (1)
Letter to the American Congress (1)
Letter to the District Attorney (1)
Letter to the Indiana Dept. of Education (1)
Letter to the Journal and Courier (Indiana Newspaper) (1)
Letter to The Purdue Exponent (1)
Letter to The Taipei Times 13 February 2012 (1)
Letter to US Departments of Education (1)
Liberty Times Article (1)
Ministry of Education Ruling (1)
Ministry of Education Warning Letters (1)
NCKU Student News Report (1)
NCKU Web page (1)
Puzzled by Taiwan's Democracy (1)
Rejection of a Formal Apology by the NCKU Administration (1)
Robert Chung (1)
Scholars at Risk Letters (1)
Silence of the Lambs (1)
Summary History of Human Rights Abuses at NCKU (1)
TIMELINE OF NCKU DISMISSAL CASE (1)
Transcript of Deposition in Student Accusation Case (1)
Wikipedia Edit (2)

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