The Democratic Progressive Party national congress opens tomorrow and most representatives have signed a joint statement calling on President Tsai Ing-wen (蔡英文) to pardon former president Chen Shui-bian (陳水扁).
However, such a move would encounter legal obstacles as well as political concerns.
The biggest obstacle to a pardon is Article 3 of the Amnesty Act (赦免法), which stipulates that those who are pardoned for an offense for which they have been convicted will not have to serve their sentence and only under special circumstances may they have their conviction declared null and void.
This article differs from Article 2, Item 2, of the same act, which stipulates that if an amnesty is issued, those who have not been convicted of an offense cannot be further prosecuted for that offense.
Because of this, opinion differs as to whether an individual who has not been charged or convicted can be given a pardon.
Chen is involved in cases where the trial has been suspended and even some that are still being investigated.
If Tsai were to issue a pardon in these cases, she would not only be using her presidential powers to override the powers of the judges, but it would also imply an assumption of guilt, which would run counter to an assumption of innocence.
There might be room for interpretation in how the Constitution and the Amnesty Act only stipulate the legal effect of the president’s special power, but do not explicitly stipulate the conditions or scope.
To issue a pardon is to reject the judiciary. It is not easy to tell whether a pardon is used as an extralegal tool to bestow favors or as a means to overturn an unjust verdict.
The Chen case was replete with procedural flaws and judicial officials that repeatedly behaved wantonly and arbitrarily. To this day, it remains unclear whether Chen really was guilty of corruption or if he was the victim of political persecution.
Regardless, the judicial irregularities that occurred during Chen’s trial could serve both as good references and targets for judicial reform.
However, the Presidential Office avoided this issue during the National Congress on Judicial Reform by clearly stating that reform should avoid discussing or addressing individual cases.
This meant that, regardless of how unrestrained the reform discussions were, there was the possibility that great opportunities for reform were missed.
To deal with verdicts that involve illegal procedures, the only choice is to resort to a retrial or an extraordinary appeal.
However, a retrial requires that the applicant provide new evidence and an extraordinary appeal depends entirely on the willingness of the prosecutor-general, with the criteria for acceptance of either very high.
Moreover, the unlikelihood of the judiciary ever correcting itself makes it difficult to turn things around, which returns the focus back on the thorny issue of a pardon.
Because of legal concerns or political considerations, the sitting president might be unwilling to issue a pardon.
This would leave the concerned correctional institutions guessing at what the leadership wants, with the result that they would be accused of lacking impartiality and acting in violation of the law.
Such an image is not what a nation that abides by the rule of law wants to display to the world.
Wu Ching-chin is an associate professor at Aletheia University’s law department.
Translated by Perry Svensson
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