Mon, Feb 09, 2009 - Page 8 News List

Putting the cart before the horse

By Wu Ching-chin 吳景欽

The high-profile cases involving former president Chen Shui-bian (陳水扁) have gone to trial, but they are still at the stage of preliminary proceedings. Nevertheless, on the eve of the Lunar New Year, when the trial concerned with money-laundering charges was just starting, Chen’s son Chen Chih-chung (陳致中) and daughter-in-law Huang Jui-ching (黃睿靚) pleaded guilty to charges against them, expressing their willingness to remit all the funds transferred abroad and donate them to public welfare groups named by the prosecution. Their plea of guilty at this point is not just surprising — it is hard to comprehend. Can criminal justice really be traded this easily?

In 2004, amendments were made to the Code of Criminal Procedure (刑事訴訟法), adopting from the US legal system the concept of plea bargaining. However, whereas the US system allows plea bargaining in all cases, in Taiwan it is not allowed in cases where the accused is charged with serious offenses punishable by death, life imprisonment or a prison term of three years or more. Furthermore, plea bargaining only applies to the sentencing portion of a trial and is subject to numerous restrictions.

Taiwan’s legal system perhaps more closely resembles Italy, which also belongs to the continental law system but has since 1989 moved toward the Anglo-American system. While some countries that adhere to continental law are gradually embracing an Anglo-American-style adversary system, they have taken care to allay doubts about criminal justice being traded by placing restrictions on plea bargaining and requiring that courts do not initiate bargaining procedures unconditionally.

Article 273, paragraph 1, clause 2 of the Code of Criminal Procedure states that a court may during preliminary proceedings ask whether the defendant intends to plead guilty. If he does, the court may move on to sentence bargaining. The procedure is for prosecutors to first ask the consent of the defendant, after which the prosecution may ask the court to change to handling a case in accordance with the bargaining procedure, in which case the court has to impose a sentence within the limits of bargaining between the adversaries, with no need for oral argument.

Article 455-3, paragraph 1 of the code states that the court has to examine the defendant and inform him or her about the charges, what statutory sentence he or she might face and what rights he or she might lose, such as the right to remain silent and the right to confront witnesses. The defendant may also withdraw from bargaining at any time.

The purpose of all these rules is to avoid having the defendant plead guilty without a full understanding of his rights.

The court must not accept without question whatever the plaintiff and defendant negotiate. Article 455-4, paragraph 1 of the code states that a court must make sure that the defendant is negotiating of his or her own free will, that the negotiations do not run counter to justice, that the contents of the negotiations do not conflict with the facts of the case, that the defendant is not gaining immunity from serious charges by admitting to lesser ones and so on. The point is that the right to present a defense and the purpose of criminal justice — the pursuit of the truth — cannot be sacrificed in the bargaining process.

Among the so-called four big cases the Special Investigation Panel has charged Chen Shui-bian over, the money-laundering case is dependent on the other three cases — the State Affairs Fund case, the Nankang Exhibition Hall construction case and the Lungtan land procurement case. Only if it is proved that there was corruption involved in one or more of these cases can there be any question of money laundering.

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