而我國政府官員在這個事件上的表現，曲意奉承中國，已經到了令人吃驚的地步。
＜加添肯亞資深律師Joseph Liu的回覆＞
陳宏哲： 聽黃國昌的意思很像肯亞法律不是這麼規定的~~
Vincent Chen： 噢？願聞其詳。對於非法入境者，如果在該國沒有犯罪，未申請政治庇護或難民身分（或不通過），通常就是被驅逐出境，而且是怎麼來，就怎麼去。
20160413 肯亞案 黃國昌 (熱血法學教室) 法務部…
YOUTUBE.COM
陳宏哲 我是不知到肯亞法律到底怎麼規定,只是聽黃國昌的口氣很像不是送到中國才對
Jason Law： 我是不知道肯亞法律到底怎麼規定，但我很害怕因為主張國家分裂會隨時從任何一國被送到中國，法務部和Vincent哥還跟我說慢走不送，就慘惹
Vincent Chen： 政治犯與難民的處理，其實是與刑事嫌犯很不一樣的。黃所說的這些台灣人，可能是合法入境的，且被判無罪，那麼處理方式，就要看是否有涉及他國案件而定。這邊還是實力原則，肯亞遞解出境後，是要交給哪一個國家來處理，就是外交（互惠）上的實力展現了。
Vincent Chen： 這個事件，這些被遣送到中國的嫌犯，有人已經被肯亞羈押了半年，甚至一年多了，現在又被遣送到中國繼續偵查，我們政府有做什麼事情嗎？
Jason Law： 那如果是主張獨立然後因此和中國人打架咧，法務部和Vincent哥還是一樣含淚跟我說掰掰嗎
Vincent Chen： 這要看你在哪裡打架，而且你本來就該自負其責。我國政府要做的，是提供你當地司法救濟的資源，還有確定你沒有受到當地國政府的不當對待，以及提供你的家屬人道探視的權利等。而不是啥事都花納稅人的錢包專機把你救回來。
Jason Law： 當然是在第三國被"指控"然後送到中國啊，Vincent哥給我有罪推定，覺得哀傷
Vincent Chen： 我有這樣說嗎？
我是說，若這些是非法入境者，國際法上的慣例，遣送回出發地。若羈押中的嫌犯，有涉及他國刑事案件（基本上要被發布通緝令），國際法上的處理原則，是轉交受害國續行處理。
中國在這個涉台事件裡，犯了最大的錯誤是並未與我方協調，並得到我方的同意（檢視所提罪據，以犯罪偵查與法庭審理便利原則處理），就直接與肯亞交涉並執行遞解轉交嫌犯的程序。所以，我方至今仍不能確認該等嫌犯，確實屬於中國所說的詐騙集團份子。
而我國政府官員在這個事件上的表現，曲意奉承中國，已經到了令人吃驚的地步。
陳宏哲： 我剛剛放棄了午休,看了今天在內政委員會跟司法委員會的影片,召委真的差好多...(而且居然有"新巴拿馬案件",太慘了)
Jason Law： quote from my friend Joseph Liu for your reference "...
According to Article 2, Section 1 and Article 49, Section 6 of the Kenya Citizenship and Immigration Act respectively, “ ‘deportation’ means the action or procedure aimed at causing an illegal foreign national to leave the country either voluntarily or compulsorily, or under detention in terms of this Act and the verb ‘to deport’ has a corresponding meaning,” “notwithstanding any provisions of this Act, all persons against who a deportation order has been issues shall be removed from Kenya within a period of ninety days from the day such final removal order is made or after appeal and further detention shall be extended by a court of law for not more than thirty days.” So you can see the deportees have to be qualified as “illegal foreign national” according to their domestic law, however, there is no such conviction on those “suspects” by any court in Kenya so far. What’s more, although the Kenyan law does not deal with the destination of those deportees, there is still a due process clause giving those deportees rights to appeal against the deportation order to the court.
This is why such deportation by using tear gas to force them getting on an airplane to China without remedies is not only illegal under their domestic law, but also could be illegal under ICCPR, which they have long ratified since 1972."
陳宏哲： 學長你這樣叫我情何以堪阿T_T
Jason Law： 沒辦法術業有專攻，這問題我不懂，只能引用來討論
Vincent Chen： Joseph Liu說的沒錯，而他說的是屬於肯亞國內法的「遞解或驅逐出境」處置（我國法律也是類似的規定）。而我說的是國際刑事犯罪防治與互助慣例，是對於非法入境或違反簽證規定而被遞解出境的外國人，若遭邦交國通緝，一般是會協助其處理而置於其實力支配之下。
Jason Law： I quote all of them for you "First of all, as a lawyer who follows the principle of presumption of innocence, I think the media by calling one based on his nationality without directly referring his “suspicions” before his conviction by a final judgment of an integral judicial system is rather commendable, and in fact could reduce any ill-effect of using the public opinion to influence the free evaluation of evidence of the judges in advance. Especially as you noticed, in this case, some of those Taiwanese people were just being acquitted by the Kenyan court, which is the news mainly taken place at. Still I have to admit that this report is rather simple without clearly reflecting the official statement of the PRC government, but it doesn’t impair its impartiality since it already manifest that it is from points of view of the authorities in Taiwan.
And as Grace has mentioned, I also think you have confused the legitimacy of deportation, which is an "administrative" procedure, with the determination of jurisdiction, which is mainly based on "judicial" reviews. Since you mostly focused on the later, maybe I should talk about it first. The reason why I use “judicial reviews” in a plural sense is because different judicial system in different country may have different decisions on the determination of jurisdiction of one specific case. In fact, as the process of your analysis, the determination of the jurisdiction over the specific case should be based on the domestic law of the country which the court belongs to, while international law only provides little limitation on the discretion of each court. In addition, since the jurisdictional issues under international law was accumulated by different decisions of different domestic courts which naturally incline to deal with the issues according to the interest of their own countries, the problem of “concurrent jurisdiction” under international law is rather ambiguous and without conformed regulation, not to say there is any evidence of a customary international law. In practice, it is usually solved by compromise, mutual respect and the operation of the principle of proportionality between those involved countries.
Anyway, in this case there is no such problem of “concurrent jurisdiction,” since the judicial system in Taiwan so far has not claimed jurisdiction over those “suspects.” “Maybe” it is because, as your analysis, according to the penal code of our domestic law, we might not have jurisdiction on this case, nevertheless, this does not mean once the PRC government claimed that they have such jurisdiction and they indeed have jurisdiction in line with their domestic law, then the Kenyan government has the obligation to “deport” those non-PRC citizens to the territory of PRC under international law. This is the most obvious fallacy that I have found in your analysis. In a nut shell, how the “suspects” were sent to the front of a court and whether such court has jurisdiction over the suspects are two totally different questions which should be dealt in different levels of legal analysis. However, both of them should be in accordance to the due process of law under domestic law as well as international law without doubt.
Furthermore, it seems like you also mixed up the concepts of “extradition” and “deportation.” Since the Kenyan government and the PRC government do not sign any extradition treaty between them, a lawful extradition was hardly established and the Kenyan government has already claimed that it is not an extradition of the “suspects” but rather a deportation of those “illegal foreigner," which was defined by the law that I will show you later. As a result, the jurisdiction is definitely not a factor to determine where those non-PRC citizens should be deported to. And what is seriously argued in this case is that whether the procedure of deportation by the Kenyan government (under the pressure of the PRC government probably, but it’s also reasonable if you claim that I have no such evidence) is pursuant to both the domestic law of Kenya and the relevant international law.
According to Article 2, Section 1 and Article 49, Section 6 of the Kenya Citizenship and Immigration Act respectively, “ ‘deportation’ means the action or procedure aimed at causing an illegal foreign national to leave the country either voluntarily or compulsorily, or under detention in terms of this Act and the verb ‘to deport’ has a corresponding meaning,” “notwithstanding any provisions of this Act, all persons against who a deportation order has been issues shall be removed from Kenya within a period of ninety days from the day such final removal order is made or after appeal and further detention shall be extended by a court of law for not more than thirty days.” So you can see the deportees have to be qualified as “illegal foreign national” according to their domestic law, however, there is no such conviction on those “suspects” by any court in Kenya so far. What’s more, although the Kenyan law does not deal with the destination of those deportees, there is still a due process clause giving those deportees rights to appeal against the deportation order to the court.
This is why such deportation by using tear gas to force them getting on an airplane to China without remedies is not only illegal under their domestic law, but also could be illegal under ICCPR, which they have long ratified since 1972."
Vincent Chen： 對，看了全文，他這樣講就比較對了，重點是這事件從頭到尾，台灣從未對這些人宣告有管轄權，也沒有探視過，只有中國聲稱為受害國，而他們為其所稱犯罪事件的嫌犯。
而這個也與所謂引渡無關，而是行政上的遞解出境程序。而這些被「遞解出境」者，照肯亞國內法，須是「非合法居留之外國人」，且有法定救濟程序（我國也有類似的規定）。
至於被遞解出境後，這些人要回哪個國家，也有合於國際法（其實是互惠措施與慣例的集合）的處置方式。
所以，媒體所報導的，使用催淚瓦斯等強制其出境，當然是非法的。但如肯亞內政部長說的，這不合常理，如果他們已經在羈押中，幹嘛要使用催淚瓦斯攻堅而遞解出境呢？
這段畫面，比較像是各國警方攻堅抓非法居留的外國人時，會發生的事情。
真的是有夠剛好!!!
UPDATE 1-Kenya says to get $600 mln from China to help fund 2015/16 deficit | News by Country |...
(Adds comments on local borrowing, interest rates) NAIROBI, April 8 (Reuters) - Kenya will agree a $600 million loan from China to help fund a budget deficit in the fiscal year starting last July, a senior
AF.REUTERS.COM
Vincent Chen：外交關係是實力原則，就是比誰的拳頭大，口袋深！
