The brutal video footage showing a man armed with a cleaver attacking a police officer shocked society. Solid as the evidence might be, the suspect was granted bail after an application for his detention was filed. That he could walk out of court on bail provoked extensive criticism. The judge was castigated by the public, as was a chief prosecutor. It was another heavy blow to the fragile justice system.
It is right to support the police, as no one should be treated with such brutality, much less a police officer in uniform representing public authority.
Now that the initial uproar has settled following repeated tension between the police and the judicial system, we need to give serious consideration to how we should go about exercising the rule of law.
The first thing to consider is detention. Two requirements have to be met to detain a suspect: First, the probability of escape and, second, the probability of destruction of evidence.
As footage of the offense has been made public, the possibility of destroying evidence does not exist. The only remaining factor is the possibility of escape. The judge thought that unlikely, and we can respect that judgement or criticize it, for it is open to public opinion. If we criticized the judge from this perspective, the criticism would be legitimate.
Unfortunately, the immediate criticism of the judge over the initial bail application was not legitimate. No one would object to calls to respect the police, but respect for the police is not a legal requirement for detention.
If a judge makes a decision in favor of anyone by overlooking the law, then there really would be cause for concern. Hence, it was especially disappointing to hear a chief prosecutor, who knows the law, denounce the judge for “being insensitive.”
After all, our judicial process is lengthy, justice is often not served in time, the detention procedure is easily abused and, in the eyes of prosecutors, getting the judge to detain the accused is often half the battle for getting a conviction.
These poor practices that have persisted over the years were the cause of the public’s misunderstanding that attacking a police officer would only cost you NT$300,000.
However, detention and trial are two different things, and they fall under two different systems. Unless we decide that if there is “concrete evidence” that trials are unnecessary and that detention can be followed by immediate conviction and sentencing, detention should not take on the function of a trial.
Moreover, different judges can make different judgements. This inconsistency might damage the image of the fairness of the court. Hence, complementary measures are necessary. If a prosecutor is dissatisfied with a ruling, it can be appealed and the case can be reconsidered.
In this case, if the prosecutor had detained the accused after an appeal, the justice system could have avoided some of the embarrassment.
However, the prosecutor hastily filed a second application for detention, in effect “forum shopping.” Although this was not outright illegal, it shows that to achieve their objectives, prosecutors do not mind hurting the court’s reputation for fairness, making it a lose-lose situation all around.
They certainly would not take the trouble to ask if the second arrest was legal, whether the there was insufficient cause to apply for detention or whether it would breach the principle of secrecy of investigation to leak the footage.
Finally, what is most worrying is that this event has led to an adversarial relationship between the judicial system and the police, obscuring the solutions to the structural problems.
It so happened that the officer was not carrying a gun, but if he had been and if he had shot and killed the accused, that would have been legal. The text of the Act Governing the Use of Police Weapons (警械使用條例) is rigid and cannot cover all eventualities, but officers on the front line must react to fluid, real-life situations.
The challenge is that ambiguous situations do occur, but the resulting mess falls on the shoulders of individual police officers, instead of being resolved by a fund or insurance mechanism.
In addition, there is the long-standing practice of legal threats; certainly police officers would feel that they are in a disadvantaged position.
Low-ranking police officers should fight for their own rights, organize a union, decrease unreasonable duties and improve their professional skills. Only by maintaining an image of professionalism and upholding the rule of law can they earn the public’s respect and maintain their dignity.
Cometh the hour, cometh the man: I am confident that police officers, who safeguard the law and aspire to fulfill their duty in great dignity, will not have any respect for decisions that cross the legal line.
Whenever something of major consequence happens, the strengths and weaknesses of our justice system are put to the test.
Kao Jung-chih is a lawyer and executive director of the Judicial Reform Foundation.
Translated by Ethan Zhan
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