The facts of the case are briefly as follows:
Chang Hsun-yi, Chinese citizen, had been resident in Indonesia (formerly Dutch East Indies) since 1918. After the Indonesian Government recognized the Chinese Communist regime in 1950, Chang was registered in Indonesia as a "stateless" person. His occupation is that of a merchant. In public life, he is Chairman of the Board of Directors of the Liberty Post (an anti-Communist daily newspaper published in the Chinese language in Djakarta), Chairman of the Djalantu Union (the Chinese retailers' guild in Djakarta), Director of the Chinese Association in Djakarta and Member of the Supervisory Committee of the Indonesian Branch of the Kuomintang.1 During his long residence in Indonesia, he was never criminally convicted, but was always credited with an immaculate record of behaviour. On September 15, 1954, he was summoned to the Alien Control Bureau, Ministry of Justice, where, without any criminal charge brought against him, he was instantly detained. On October 5, the Attorney-General, by an order of the Minister of Justice, on the ground that Chang was "engaged in political activities endangering the security of the Republic" and by virtue of Emergency Regulation No. 9 (Control of Aliens), 1953 (hereinafter called "the Regulation"),2 ordered him to be deported to the Chinese Communist-held mainland within ten days. On the same day Chang was removed to a prison. The Minister's order was amended on October 9, according to which. Chang was allowed to remain in Indonesia until October 17, on which day he should be deported to any place of his own choice or, in case he should fail to name any, to Communist China. He continued to remain in prison but was allowed to go home under police escort every day between nine o'clock in the morning and four o'clock in the afternoon to prepare for his final departure. Meanwhile, he was prevented from applying to Court for a review of the expulsion order. On October 15, through his lawyer, he applied to the Attorney-General for extension of the period prescribed in the Minister's amended order of October 9. The application was rejected on the next day. On October 17, upon expiry of' the period, Chang was transferred from his cell to a detention centre of the Alien Control Bureau. On October 24, he was taken by plane to the Island of Makassar, where he was kept until December 15, when he was taken back to Djakarta. On December 16, the actual deportation took place. Chang protested against his deportation until the last moment. He was flown to Manila under police escort. On December 17, he left Manila and arrived in Taipei.
Expulsion of Aliens and State Sovereignty
Although some writers maintain that as an attribute of sovereignty a State has the absolute right to expel an alien at any time and without giving any sufficient reason, the more modern and prevalent view among international lawyers is that this right must be exercised within certain limitations. As aliens enter the realm of the country upon the faith of the government to let them stay, they should be allowed to continue their residence unless they render themselves obnoxious. To eject them without just reason or necessity is to subject them wantonly to hardships, and might constitute such an abuse of right as to involve the duty of the State to pay compensation. What is a just reason or necessity in this connection is not always easy to lay down by way of general rule, but clearly, there must be no arbitrariness. While much has to depend on the particular circumstances of each individual case, it may be justified to say that in the majority of cases the expulsion of an alien is not considered arbitrary so far as it is in accordance with the municipal law of the expelling State. International law having allowed a wide discretion at which a State can' decide for itself by law under what circumstances an alien may be expelled, it seems only reasonable that it is under the corresponding duty not to expel him in violation of its own law. This, a priori, is particularly true in the case of an emergency regulation, which necessarily reduces the aliens' right and remedy to a minimum.
Expulsion of Chang Hsun-yi and the Law of Indonesia
Thus, the legality or otherwise of Chang's expulsion in international law can be determined to a substantial degree by reference to the municipal law of Indonesia. Section 1, Article 5 of the Regulation empowers the Minister of Justice to deport any alien found endangering public security, good morals or public order, or having committed a breach of other Article or Articles of the Regulation. It is on this Section alone that the Minister bases his whole case. However, by Sections 2 to 4 inclusive of the same Article, this rather sweeping power of the Minister is somewhat modified. Section 2 provides that the Minister, when issuing an order under Section 1, must state in that order the charges against the alien. Section 3 guarantees the alien's right to defend himself against the charge. Section 4 allows him to leave the country at his own expenses provided he has cleared himself of his obligations to wards the Republic and is under no criminal liability at the time of his departure. To what extent had these provisions been observed when the Minister ordered Chang's expulsion?
a. Stipulation of the Charge
So far the Minister of Justice has given no reason for Chang's expulsion save that Chang was "engaged in political activities endangering the public security of the Republic." It is doubtful whether these words are sufficient to make up a "reason" which Section 2 of Article 5 of the Regulation requires the Minister to stipulate in his expulsion order. It is true that Section 1 of the same Article empowers the Minister to deport any alien from the country who is "endangering public security, good morals or public order." But these words do not mean anything in law capable of clear legal definition without reference to some other legislations, the criminal law of the land above all. They are vague expressions of general guidance for the Minister's action rather than specific legal terms with ascertainable significance. In themselves, they can mean anything or nothing at all. It would be ironical to imagine that Section 2, obviously meant to be a check on any possible abuse of power on the part of the Minister, should be so interpreted as to strengthen his arbitrary hand. At the same time, Section 2 also requires the Minister to name the law on which the reason of his charge against the alien is based. That "law" necessarily excludes the Regulation itself. It follows that the "reason" based on this "law" cannot be any "reason" created by the Regulation. In other words, it must be a legal wrong created and defined independently of but covered by Section 1. It is clear that the charge "endangering the public security of the Republic" can stand on no other law than the Regulation itself. Otherwise it would be strange that Chang has not been criminally convicted. It is not due to negligence nor generosity that the Minister of Justice has neither given any substantiated detail of Chang's alleged offence nor cited any relevant section of the Indonesian criminal law against him. Even if the "reason" given by the Minister elsewhere were valid, the fact that he has not given it in his order would be a technical fault serious enough to defeat his order. Since the Indonesian Government has not given us any valid legal justification for Chang's expulsion, it is fair for us to assume that there is none, and that the expulsion is a political measure taken purely for political considerations.
b. Right to Defence
Section 3 of Article 5 of the Regulation provides that an alien, before he is subject to the "punishment" under Section 1, is entitled to defence. This is no more than a reiteration of the basic principle of civilized justice that no one should be condemned without having had a chance to defend himself. What kind of de fence that is Section 3 does not say. The Minster of Justice stated on October 18 that Chang was not entitled to any other defence than what he had already conducted in the presence of an immigration officer in the Alien Control Bureau. This interpretation of Section 3 by the Minister is contrary to one of the most fundamental principles of natural justice, namely, that a man cannot be accused and tried by the same person in the same case: Nemo potest esse simul actor et judex. If the Minister's could be a sound interpretation, the whole Section, indeed, the whole Regulation, would be reduced to a mockery of justice. A law enacted by the Executive by way of delegated legislation cannot be a mere whim of government officials. Its application must be subject to judicial control. Its final interpretation must rest with the Court. It was for the Court to decide whether Chang was entitled to a judicial hearing. Furthermore, Sections 1 and 2 of Article 6 provide that in the case of expulsion of an Indonesian citizen under Section 1 of Article 5 (it is not clear how a State can expel its own citizens), the citizen may appeal against the expulsion order to the local Court, with further appeal to the Supreme Court. Such appeals have not been expressly denied to aliens either by the Regulation itself nor by any other law in Indonesia. In fact, it would be inconceivable that any civilized State could discriminate by law against aliens in the matter of administration of justice. Article 5 must therefore be interpreted, as far as an alien is concerned, by reference to Article 6. The alien's right to defence is further guaranteed by Section 4, Article 7, Chapter V of the Indonesian Provisional Constitution, which provides: "Everyone has the right to effective remedy by the competent tribunals for acts violating the fundamental right granted him by the law." In view of the title of the Chapter, "Fundamental Human Rights and Freedoms," the word "everyone" necessarily covers both nationals and aliens alike, and no one can deny that the alien's right to defence under the Regulation is a "fundamental right granted him by the law." We cannot help feeling that the Minister's interpretation of Section 3 of Article 5 of the Regulation has been made in disregard of the principles of natural justice, of the whole tenor of the Regulation, of the Constitution and of his country's international obligation to maintain a minimum standard for the treatment of aliens.
c. Deportation to Red China
The Minister of Justice at first ordered Chang to be deported to the Chinese mainland. Whether this can be justified on political or humanitarian grounds is beyond the scope of the present discussion. The order clearly constitutes a violation of Section 4 of Article 5 of the Regulation, which provides that an alien subject to the "punishment" under Section 1 of that Article may choose to leave the country at his own expenses after he has cleared himself of all obligations towards the Indonesian Republic and criminal liability. This Section does away with forced deportation on certain conditions. The Indonesian Government at first appeared to attribute the mistake to the minor civil servant who drafted the Minister's order. Later, the original order was amended and Chang was deported to Free China via Manila. But the point has not ceased to be one of active interest in view of the Minister's statement on October 27 that the Indonesian Government had the right to send Chang to Red China but only refrained from doing so for "humanitarian reasons." In point of law, what right has a State to compel an alien to go to a place where he does not want to go, if he agrees, even under protest, to leave the country for another place that is willing to accept him? By normal practice, in the absence of any provision such as Section 4, the State sends the alien back to his own country. But this is no hard and fast rule. The Minister said that he ordered to deport Chang to Red China because Chang claimed to be a Chinese. But that claim, even though Section 4 did not apply, gave the Minister no right to send him to that part of China where he had no wish of going and where he was sure to be executed. In sending Chang to Red China, the Minister would be extraditing, in effect, a political exile without even being requested to do so.
Denial of Justice
By "denial of justice" the writer means the denial of legal means of redress to an aggrieved alien. The term signifies every wrongful act or omission by the State towards him in connection with its administration of justice. Two forms of denial of justice have been committed by the Indonesian Government in this case. That Government's denial to Chang of access to Court has been discussed. The irregularities of proceedings in the Alien Control Bureau, which handled Chang's case in a quasi-judicial capacity, remains to be pointed 9ut. As has been said, the Bureau was the only place where the Minister of Justice allowed Chang to state his defence. Even there Chang's defence was nugatory. He was not allowed any legal aid. Neither he nor his lawyer was given any particulars of the charge against him, and during the whole length of his incarceration his lawyer was never allowed to visit him. After five days' long questioning the Bureau produced a document supposed to be Chang's "confession," a document which, according to Chang, he never read nor signed. It was, nevertheless, upheld by the Minister of Justice to be Chang's valid confession after it was "confirmed" by a judge. That a judge not present at the questioning could have identified the document with what Chang had actually said must be a feat of judicial imagination. The writer has no knowledge of the Indonesian law of criminal procedure and therefore cannot tell with what formality a confession is validly made in Indonesia. It appears to him that if according to that law a document produced by the prosecution could be taken as the defendant's confession against his will, that law would be so contrary to natural justice that it cannot be recognized by international law as applicable to an alien. Yet, on that "confession" Chang was declared to be "endangering the public security of the Republic" and forced to leave the country. Perhaps the Minister of Justice realized how unjust this was when he refused to give a copy of the "confession" to Chang's lawyer. Such an irregular practice on the part of the Indonesian Government, coupled with its refusal to allow Chang access to Court, constitutes a denial of justice the flagrancy of which cannot be easily surpassed.
Mode of Expulsion
Expulsion is not a punishment to the alien affected. It is a mere order to direct him to leave the country. As such, it must be executed with appropriate consideration, and, unless it is disobeyed, without constraint or violence. It is difficult to understand why the Indonesian Government thought it necessary to deprive Chang of his freedom pending his departure from the country. There was no question of his escape, for he had a family with him and a substantial amount of property. He was not a dangerous person. Neither was he a criminal nor had any criminal charge been brought against him. In addition to his loss of freedom he had to suffer the indignity of being put in a common prison and the hardships of being taken from place to place under guard. The duration of his imprisonment was unjustifiable under the circumstances. Already before the expulsion order was given against him, that is, between September 15 and October 5, for twenty whole days, he was imprisoned by the Alien Control Bureau. One would like to know why. Altogether this moderate and law-abiding person was shut up behind iron bars for three full months. This would be a great hardship even if the expulsion itself were legal. Could not the Indonesian Government have released him on security, or put him under house arrest, or ordered him to report to the police every day, or taken any other less oppressive measure that could equally prevent his escape?
While the time of his imprisonment was long, the time allowed him to prepare for leaving the country was short. It is a well established rule that an expelled alien should be given sufficient notice so as to avoid unnecessary hardships and losses. Yet this person who had lived in Indonesia for thirty-six years was at first given ten days to leave the country. Then he was given another week. Request for further extension was flatly turned down. Although three months intervened between the first order and his actual deportation, except for seven hours a day for a week, he remained in custody all the time. How was it possible for him to wind up his business within forty-nine hours? Meanwhile, while he stayed in prison, his house was threatened by trespassers. His lawyer inquired the Minister of Justice whether he would be permitted to take the proceeds out of the country after he sold his property, but received no definite reply. The fruits of his labour in Indonesia for over a generation he had to leave behind. His property is now in the possession of his family. It is hoped that his family would be able to take his property with them, or the proceeds of the sale thereof, when they decide to join him in Taiwan or anywhere else.
Protection of Chinese Citizens by Republic of China in Countries Recognizing Chinese Communist Regime
In clear contradistinction to the high degree of arbitrariness with which the Government of Indonesia expelled Chang Hsun-yi is the extreme caution of the Chinese National Government in its remonstrance. This may be due to the absence of formal diplomatic relations between the two Governments. Probably the Chinese National Government thinks that if a formal protest be lodged against the Indonesian Government the latter's answer "We do not recognize you" would be final. It is the view of the writer that this cannot be so. Recognition has nothing to do with the right of a country to protect its citizens abroad. A country cannot inflict an injury on the citizen of another even when it does not recognize his government. No doubt, in the eyes of the Indonesian Government, Chang's government is the Communist regime in Peiping, which it recognizes. But that view cannot by itself extinguish the right of the Government of the Republic of China to protect a Chinese citizen whose allegiance remains unchanged to the Republic. The Republic of China as a legal entity has not ceased to exist whether or not its government continues to be recognized by Indonesia. The Indonesian Government may turn a deaf ear to a protest made by the Government of the Republic of China, but then all remedies available to any government under similar circumstances according to international law will be available to the Government of the Republic of China.
For example, reprisal. This is a coercive means to settle an international dispute. Recourse to it is permitted by international law within certain restrictions. Within such restrictions including the exhaustion of peaceful means the Government of the Republic of China is perfectly free to resort to it.3 In that event the question whether the Government of the Republic of China is the legitimate Government of China in the eyes of Indonesia would be unimportant. What is important is whether the Government of the Republic of China is a government at all. The answer to that question does not depend in the least, on the view of the Indonesian Government one way or the other. Another remedy open to the Government of the Republic of China is to bring the matter to the United Nations, of which both the Republic of China and Indonesia are members.4 The United Nations cannot refuse to deal with the matter on the ground that Indonesia does not recognize the Government of the Republic of China. The same is true with any other remedy to which the Republic of China is entitled. It mayor may not be politically practical for the Government of the Republic of China to avail itself of this or that remedy in this case—this is not a question covered by the scope of the present discussion. But legally, there are remedies.
This is an important principle worthy of our attention not only for the welfare of millions of Chinese people in Southeast Asia, where the governments of some" countries have recognized the Peiping Communist regime, but also as a more fundamental question of human rights. Traditional international law recognizes only sovereign States as its "subjects," whereas individual human beings are merely "objects." As a result, with very rare exceptions, individuals undertake no obligations and enjoy no rights under international law. Thus, an injury done by a State to a foreigner is not an injury done to him but to the State of which he is a subject. He can claim no justice although his government can demand a handsome compensation for an outrage nobody but he has suffered. His compensation must come through the grudging fingers of his government, which, in law, is free to give or not to give him a cent. It is also at his government's absolute discretion to extend to him any diplomatic protection. Such a view, though widely accepted, is rather curious. In the last resort, individuals and individuals alone are subjects of all laws, because only individuals live and feel, suffer or rejoice. There is no State without individuals. A wrong done to an alien is, by pure and plain common sense, a wrong to him and not to his State just as a wrong done to a minor is a wrong to the minor himself and not to his parents or guardian. The traditional view to the contrary is, it is submitted, a mere fiction. The right of the alien's State to protect him is only procedural; his right to adequate remedy is substantive. The value of man must be put above the value of State, and the existence of the substantive right must not be made dependent on the whimsical exercise of the procedural, which exists only for convenience. When one remedy is in default and the right of man suffers consequently, another should be provided from whichever quarters, in order that the right of man suffer not: Necessitas est lex temporis et loci. The fundamental rights of the millions of Chinese people in the greater part of Southeast Asia must not be left to the caprice of the queer political combinations of our age. The Government of the Republic of China has the right and, indeed, the duty, to protect them against persecution by men or governments, and let no legal nicety be a bar to the assertion of this right or the fulfillment of this duty.
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1. The Indonesian Branch of the Kuomintang has been in legal existence for the last forty-five years. According to a statement issued by the Branch on October 18, the activities of the Branch are confined to the promotion of education among the Chinese people in Indonesia and of cooperation between them and the local government and people.
2. The Regulation was promulgated by the President of the Republic in 1952 in exercise of his emergency power conferred on him by Article 96 of the Provisional Constitution of the Republic of Indonesia.
3.Obviously, in practice, the exhaustion of the peaceful means would have to begin with a formal representation in which the Government of the Republic of China states its objection to the action of that of the Republic of Indonesia and the legal grounds thereof.
4.If the Government of the Republic of China wants to bring the case to the Security Councilor the General Assembly under Paragraph 1 of Article 35 of the Charter, it will have to make out a case of a dispute or situation "likely to endanger the maintenance of international peace and security." Further, if the Government intends to invoke Article 39, which may bring the whole compulsory machinery of the Council into action, it must establish the existence of a "threat to the peace, breach of the peace or act of aggression." However, in determining whether such a threat, breach or act exists, "the Security Council is not bound by any rigid definition of the acts—of aggression, of breach of the peace, or otherwise—calling for measures of enforcement." "Such compulsive action is not necessarily conditional upon a previous breach by the State concerned of its obligation not to resort to war or force or to threats thereof. A 'threat to the peace' calling, in the view of the Security Council, for compulsive action may result not only from acts of force or threats of such acts, but also from an attitude of unneighbourliness and lack of accommodation inimical to the maintenance of international peace and security…" Also: "It must be emphasised, once more, that having regard to the general responsibility of the Security Council for the maintenance of international peace and security, a determination that there is a 'threat to the peace' may be made even if neither party has resorted to force or threats of force in violation of the Charter," See Oppenheim's International Law, Vol. 2 (Seventh Edition by Lauterpacht), pp. 163 et 164. It must be particularly noted that Paragraph 1 of Article 33 of the Charter stipulates: "The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice."