Innocent!

About two and half years ago, my colleague David Reid and I conducted interviews with academics, media personnel and some of the Smangus people about a court case in which three Smangus Atayal were convicted of theft for removing the stump of a valuable tree felled by a typhoon. We also made a movie about the case called 'Stumped'. The case was simple:

1. Tree fell down across the only access road to the community.

2. Forestry bureau cut up the tree and removed all but the stump, leaving it by the side of the road.

3. Smangus community voted in a village meeting to retrieve the stump and to use it for art works.

4. Shortly after the stump was removed the Forestry Bureau had the three men sent to collect the stump arrested.

5. Several courts declared the men guilty and gave them huge fines and threatened them with prison sentences.

Yesterday came great news:

THE TAIWAN HIGH COURT HAS ACQUITTED THE THREE MEN:

Three Atayal men accused of theft in the landmark Zelkova tree case were acquitted yesterday after a legal battle lasting more than four years.

In October 2005, police arrested the three men from the Atayal village of Smangus (司馬庫斯) in Hsinchu County and charged them with theft for transporting part of a Zelkova tree felled by a typhoon that was blocking the road connecting their community to the outside.

The decision to remove the tree and bring it back to the village to be carved into a piece of artwork was made communally by the village's council.

The three men pleaded not guilty to the charges, saying they were only executing the village council's decision to remove the tree and bring it back to the village to be carved into a work of art.

They said they also believed that the community had the right to decide what to do with the tree as it had fallen within its traditional domain, in accordance with the Aboriginal Basic Act (原住民族基本法).

“I was very upset about being charged, and think it's very unfair,” Amin Yosow, one of the three men, told the Taipei Times outside the Taiwan High Court after the verdict.

“I kept telling the judge that I didn't agree it was theft because I was following a council decision, especially when I wasn't even taking the tree home for myself,” he said.

However, while the Aboriginal law allows Aborigines to gather items from nature for daily non-commercial use within their traditional domain, the law does not define the boundaries of “Aboriginal traditional domains.”

To help the three men, the Council of Indigenous Peoples quickly declared areas surrounding Smangus a traditional Atayal domain.

But this failed to work, and they were each sentenced to six months in prison and a fine of NT$160,000 in 2007.

The three appealed for help from Aboriginal rights activists and other Smangus villagers. Finally, the High Court ordered a re-examination of the case last year based on the reasoning that Aboriginal culture should be respected.

It was on the same grounds that the Taiwan High Court declared the three defendants not guilty.

“We thank all our friends for helping us in our hard-fought legal battle over the past four years, and we are happy that justice has finally been done,” Smangus chief Icyeh Sulong said in Atayal at a brief press conference outside the courthouse.

“We're also happy to see that the [judicial] authorities are able to respect the tradition, culture and autonomy of Aborigines — which has been passed down from generation to generation over thousands of years,” he said. (This stands in stark comparison to R.O.C tradition, culture and autonomy which is exactly 99 years old)

Thomas Chan (詹順貴), defense attorney and a member of the Legal Aid Foundation, called the verdict a “belated victory” and urged the prosecutor not to file an appeal.

Although he felt relieved at the verdict, Amin said he was worried that not all Aborigines would be so fortunate as to have their cases reviewed by judges who respect Aboriginal culture.

“Although we have the Aboriginal Basic Act, which establishes the framework for protecting Aboriginal rights, we don't have related subordinate laws that lay out the details,” he said. “Only when the subordinate laws are all adopted can we be fully relieved.”

Check David's blog for more info.