Wed, May 09, 2012 - Page 8 News List

Legal process is running scared

By Kao Jung-chih 高榮志

Former independent legislator Lo Fu-chu (羅福助) is on the run and a judicial problem remains unresolved: The public is disgusted with criminals and hate it when the privileged and powerful commit crimes. People are also deeply distressed by the weakness and ineffectiveness of the judiciary, which includes failing to take a person into custody after a verdict has been delivered.

The response of the various judicial institutions is inexplicable and baffling. The district court charged with carrying out the case against Lo seems to think it is the victim of an injustice and the Ministry of Justice seems just as helpless. The court, meanwhile, operates as if none of this were its business. It is simply laughable to talk about the “prestige” of the judiciary when one person after another goes on the run.

After Lo absconded, some people said the law should be amended and I am not opposed to that. However, one should pay attention to the proportionality principle: The methods should be effective and the infringement should be as small as possible. Furthermore, one should be inventive and imaginative and not cite “popular morale” to inappropriately expand the powers of the judiciary.

Some people argue that the defendant should be detained at an earlier stage: At the time of the verdict by the court of first or second instance. If all one seeks is to prevent the defendant from running away, then that would be effective. However, doing so would be too much of an infringement on personal freedom. In particular, it would increase the pressure on courts to find the defendant not guilty.

In addition, there is the possibility of future criminal damages. Also, under the current system, it is not very difficult to detain the defendant in major cases. If the rules were further relaxed, we would return to the old ways of the authoritarian era when human rights were routinely violated.

Supervision and restrictions before and after the time when a verdict is finalized could be used in lieu of detaining the defendant. Using electronic supervision or amending the law so that a verdict is executed immediately upon finalization are both in line with the principle of proportionality and thus both are possible and feasible ways to move forward.

However, clever and privileged people continue to abscond and one can only speculate as to why the Ministry of Justice or the Judicial Yuan has failed to give the public a clear and comprehensive answer on what laws it will amend, and how.

Furthermore, although the Judicial Reform Foundation is not opposed to amending the law, we do question whether or not the main judicial institutions, by continuing to place responsibility on the legislature, are insinuating that the law is not amended because both legislators and yuan presidents are among those who have absconded.

If the current law is not broken, could it instead be that it is a matter of enforcement? Article 101 of the Code of Criminal Procedure (刑事訴訟法) states that if there is a risk that a defendant may abscond, he or she can be detained. Article 101-2 also states that less intrusive methods such as bail, placing the accused in the custody of another or enforcing restrictive limitations on their residence “if the detention is deemed unnecessary” are legal. Article 116-2 states that the accused can be ordered to “report to the court or public prosecutor periodically” or follow “other activities the court deems suitable.”

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