Thu, Jul 16, 2009 - Page 8 News List

Detained by a lawless judiciary

By Huang Chi-yao 黃啟堯

Astonishingly, the Taipei District Court again ruled to continue the detention of former president Chen Shui-bian (陳水扁). In doing so, the court flouted international human rights legislation as well as the fact that the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights have been signed into Taiwanese law.

The constitutional separation of powers requires the judicial, legislative and executive branches to supervise each other. After President Ma Ying-jeou’s (馬英九) administration took over, however, the judicial branch has not fulfilled this constitutional role.

Instead, it has listened to the government and given up its independence in joining the other branches to create an authoritarian system that impinges on impartiality and justice and encroaches on human rights.

Superficial evidence has made an appearance in Chen’s case, but pre-sentence detention is not a means to punish suspects, nor a tool to extract confessions.

The presumption of innocence means that the accused should be detained only after a guilty verdict has been issued and that judges must pay attention to admissible evidence. Judges cannot decide to detain a suspect indefinitely because they determine on their own accord that there are strong suspicions involving the accused or that he could try to abscond, then hand down a verdict based on a confession given under duress.

If, for example, Chen really was under strong suspicion of committing a crime, there would have been no need for the controversial switch of judges that resulted in Chen’s detention. Furthermore, if there are suspicions that an accused former president may abscond, this presumes that security officials will neglect their duties. This kind of presumed guilt is unreasonable and illegal.

If the reasons for the latest extension to Chen’s detention are not accepted by the general public, the judiciary will lose its credibility.

Corruption, graft and money-laundering are criminal acts around the world, and while the same is the case in Taiwan, previous judgments indicate that courts have not applied the law consistently in investigations of Chinese Nationalist Party (KMT) government leaders. This has set a tacit precedent, and the unfairness of it all implies that there are two legal systems in place in Taiwan.

The Republic of China’s Constitution is a constitution for China, not for Taiwan, and the laws in the Constitution are Chinese laws, not Taiwanese laws. If we accept that Taiwan is lawless, then anything is acceptable.

The Nuremberg principle, the basis for international criminal law, states that the legality of domestic legislation does not absolve one of responsibility under international law, and that actions performed in the line of duty are not necessarily legal.

Human rights crimes fall under international legislation, so, in addition to expressing concern for Aung San Suu Kyi in Myanmar, I call on the UN and the international community to show their concern for the problems of leaders of human rights movements elsewhere.

Huang Chi-yao has a doctorate in law and is a visiting researcher at the Max Planck Institute.

TRANSLATED BY PERRY SVENSSON

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