At the end of World War I, the autocratic rule of the German Kaiser came to an end, and Germany’s first democratic republic — the Weimer Republic — was established. Those who are familiar with the history of the Weimar Republic know that it was “a republic without republicans.” Above all, representatives of the state machinery — civil servants, military personnel and judges — were lacking in democratic credentials. They were for the most part leftovers from the old regime, and some of them did not like the idea of freedom. The Weimar Republic’s judiciary was widely condemned as political and many historians take the same view.
Judges under the Weimar Republic handled cases according to their own likes and dislikes. Defendants with whom they sympathized were let off lightly, but when it came to someone a judge disliked the law was often strictly interpreted and the harshest penalty imposed.
Ironically, it was judicial independence and abstract legal concepts that provided those judges with the ability to abuse their power and a fig leaf to cover their abuses. Although the Weimar Republic had constitutional protections; the problem was that its judges did not apply them equally to allies and opponents. In effect, this was a kind of institutional state violence.
It would be unfair to say that the judiciary in Taiwan today is run by the Chinese Nationalist Party (KMT), so the crucial problem is not one of political control or direction of the judiciary. Nevertheless, it is hard not to think of the Weimar Republic and its politicized judiciary when one looks at the case of former KMT legislator Diane Lee (李慶安), who was found not guilty last week in an appeal against corruption charges.
Knowing full well that someone who holds dual nationality is not allowed to hold public office, Lee attacked others for doing so, despite retaining US citizenship herself. Yet the court sought to justify its verdict by arguing that Lee had no obligation to take the initiative in revealing her dual nationality. The judges argued that possession of foreign nationality does not necessarily conflict with loyalty to Taiwan and Lee had committed no fraud by carrying out her professional duties, so there was no intention to defraud.
Here we have a case of someone who knew that what she was doing was forbidden by law, and yet intentionally concealed the infringement and financially benefitted in the process. What is that, if not fraud? Even if it is hard to establish the crime of fraud in this case, was it right not to assign any blame or criticism?
In Berlin in 1922, journalist and theater critic Maximilian Harden, who was of Jewish ancestry, was the victim of a violent assault that could easily have killed him. In the ensuing trial, the judges repeatedly raised doubts about the victim and ridiculed him, and finally they convicted the two assailants of the relatively minor offence of bodily injury and imposed a very light sentence.
Reporter Kurt Tucholsky, who observed the trial, condemned the judges for their handling of the case.
“That is not bad justice,” he wrote. “That is not poor justice. That is not justice at all ... Even the Balkans and South America will refuse to be compared with this Germany.”
Tucholsky warned his fellow Germans that complicity with would-be murderers would eventually lead them down the path to ruin.
In Taiwan today, we see judges who depart from people’s basic understanding of justice and do all they can to absolve those who break the law of blame. These judges would do well to heed the warning of the Weimar Republic’s judicial failures.
Lin Chia-ho is an assistant professor at National Chengchi University’s College of Law.
Translated by Julian Clegg
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