Tue, Dec 16, 2008 - Page 8 News List

Judges’ hamfisted take on the law

By Wu Ching -chin 吳景欽

Former Bureau of Investigation director Yeh Sheng-mao (葉盛茂) was sentenced to 10 years in prison on Dec. 4. Prosecutors charged Yeh with leaking non-military state secrets and sought a sentence of two years and six months for informing former president Chen Shui-bian (陳水扁) about details of investigations into alleged money laundering by Chen and members of his family.

Reaching their verdict in the first trial, judges at the Taipei District Court found Yeh guilty of not only the original charge, but also five other charges, including influence peddling on behalf of Chen and forgery, and handed down a harsh sentence of 10, saying that Yeh had shown flagrant disregard for the law.

The Taipei District Court’s handling of Yeh’s case was remarkable not only for its speed, but also because the court kept referring to two other cases — Chen’s alleged abuse of the state affairs fund and his alleged money laundering — that were still under investigation. The judges even made accusations related to the Chen case in the written verdict, which makes one wonder who was really on trial on this occasion — Yeh or Chen. The fact that the judges used a case where prosecutors had yet to make any indictments in this way makes it necessary to ask whether they exceeded their powers by convicting the defendant on charges other than those originally brought against him.

In principle, a court should not try a defendant in cases where prosecutors have not made any indictments. This, the principle of “no trial without complaint,” is part of criminal procedure and an important part of the separation of powers. This is something that every student of law must know, and judges are of course aware of it. The question then arises of whether the judges exceeded their powers by including matters arising from another case in their verdict. If there is any justification for the judgment, it is to be found in Article 267 of the Code of Criminal Procedure (刑事訴訟法), which reads: “If part of the facts of a crime is prosecuted by a public prosecutor, all such facts are considered to be included.”

According to this clause, if Yeh’s act of providing confidential information was a matter not just of leaking secrets, but also of influence peddling or other illegal behavior, so that several offenses were committed concurrently, then the judges could extend the scope of the trial to include these other offenses in line with the principle of indivisibility.

This latter principle is enshrined in law, and it is often invoked in trials under our judicial system. As such, it is a tenet with which any legal professional must be conversant. On this occasion, however, the use of this principle has led to a verdict that many people find hard to understand or accept. How could the judges follow the law, and yet arrive at such a questionable result?

Interpretation and application of the law is the very nature of a judge’s work. If, as is sometimes the case, a judge’s final verdict is at odds with what the common person might expect, it does not necessarily mean that the judgment is contrary to the law. However, judges must not forget why the law exists in the first place.

Take for example the principle of “no trial without complaint.” The law stipulates that judges should not pass judgment on matters outside the scope of the case in hand. The purpose of this restriction is to define the scope of the case, so that the defendant is able to exercise his or her right to formulate a defense within those parameters. In placing such a restriction on the judges, the principle of “no trial without complaint” prevents arbitrary decisions by the judiciary. No legal interpretation or application may contravene this overriding principle, lest we lose sight of the fact that the law should serve humanity. Taiwan’s legal system is not a count system. Rather, it retains objective indivisibility, allowing judges to order prosecutors to investigate additional matters not included in the original charges. At the same time, it protects a defendant’s right to formulate a defense. In the case against Yeh in the Taipei District Court, this meant that witnesses could be summoned to give testimony regarding allegations of influence peddling, and, this being the case, the judges’ conduct ought to be justifiable and not suspect.

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