Eroding justice: Open letter No. 2

Tue, Dec 02, 2008 - Page 8

The Honorable Wang Ching-feng,

Minister of Justice,

Taipei, Taiwan

Dear Minister Wang [王清峰],

In an open letter to the Taipei Times published on Nov. 25, you responded to our joint statement regarding the erosion of justice in Taiwan. We appreciate your acknowledgement of the sincerity of our concerns, and are grateful to receive a prompt and serious reply.

Based on the information available to us, however, we remain concerned about choices made by prosecutors in applying existing legal authority and strongly believe in the need for reform. Please allow us to highlight a number of specific points:

1. The procedure of “preventive detention”: This procedure is obviously intended for serious criminal cases in which the suspect is likely to flee the country. In his Nov. 13 article in the South China Morning Post, Professor Jerome Cohen states that “it ought to be invoked rarely.”

Yet, during the past weeks, it has been used across the board, and it has been used only against present and former members of Democratic Progressive Party [DPP] governments. This casts severe doubts on the impartiality of the judicial system. We also wish to point out that the people involved were detained under deplorable circumstances, and that they were not even allowed to see relatives.

2. Your open letter contains the argument that when they were detained, the present and former DPP government officials “were all informed of the charges that had been brought against them.” This is simply not correct. When they were detained, they were subjected to lengthy interrogations — in some cases for up to 20 hours — which bore the character of a “fishing expedition,” and do not represent a formal indictment in any legal sense. In most cases the prosecutors had had months to collect information; if they did have sufficient evidence of wrongdoing, they should have formally charged the persons and let them have their day in a scrupulously impartial court of law. That would be the desirable procedure under the rule of law in a democratic society.

3. Your open letter also states that the persons involved had “the right and ability to communicate with their attorneys to seek legal assistance.” It neglects to mention, however, that in all cases where people were detained, the discussions with the lawyers were recorded and videotaped while a guard took notes. This information was then immediately transmitted to the respective prosecutors. We don’t need to point out that this is a grave infringement on international norms regarding lawyer-client privilege and makes mounting an adequate defense problematic at best.

4. On the issue of leaks to the press, your letter states that, under the Code of Criminal Procedure, information from ongoing investigations can only be disclosed by spokespersons of the prosecutor’s offices and that unauthorized disclosure is subject to criminal prosecution. The fact of the matter is that during the past weeks, the media have been filled with information on the ongoing investigations that could only have come from the prosecutors. We may point out one example, but there are numerous others:

Only a few hours after former minister of foreign affairs Mark Chen [陳唐山] was questioned on Nov. 3, Taiwan’s Apple Daily newspaper ran an article saying that “the prosecutors are thinking of charging Dr Chen in relation to the case.”

The issue of violation of the principle of secret investigation was also raised by Shilin District Court Judge Hung Ying-hua [洪英花], who strongly criticized the present situation and procedures followed by your ministry in a Liberty Times article on Nov. 17.

We may also mention that we find it highly peculiar that no steps whatsoever have been taken against the various prosecutors who leaked information, while we just learned that the Ministry of Justice is now taking steps against Mr Cheng Wen-long [鄭文龍], the lawyer for former president Chen Shui-bian [陳水扁], who supposedly “leaked” information to the press. The ministry sent a formal request to the Taipei District Prosecutor’s Office asking the office to investigate and prosecute, and sent a formal request to the Taiwan Lawyers Association that asked the association to review the case and see whether Cheng should have his license revoked.

It is our understanding that the statements Mr Cheng made were in relation to former president Chen’s views on Taiwan’s situation and its future, and an expression of love for his wife, but did not have any bearing on the case against him. We hope you realize that if the ministry proceeds along these lines, this will be perceived as a direct confirmation of the strong political bias of the judicial system.

5. Your letter states that it is untrue that Taiwan’s judicial system is susceptible to political manipulation. If this is the case, how can it be explained that in the past weeks, only DPP officials have been detained and given inhumane treatment such as handcuffing and lengthy questioning, while obvious cases of corruption by members of the KMT — including in the Legislative Yuan — are left untouched by the prosecutors or at best are stalled in the judicial process?

We may also refer to expressions of concern by Professor Cohen and by lawyer Nigel Li [李念祖], who expressed his deep concerns about preventive detentions in the China Times’ editorial for Nov. 9. In the editorial, Mr Li praised remarks made by prosecutor Eric Chen [陳瑞仁], who was part of the legal team prosecuting the special fund cases, that the prosecutors’ offices should “avoid the appearance of targeting only one particular political group.”

The fact that the Special Investigation Task Force was set up under the DPP administration or that the prosecutor general was nominated by former president Chen is not at issue here. The problem is that the present system is being used in a very partial fashion.

We may add that the fact that you yourself have publicly discussed the content of the cases does create a serious imbalance in the playing field, and undermines the basic dictum that a person should be considered innocent until proven guilty in a court of law. Under the present circumstances it is hard to see how the persons involved — including former president Chen — can have a fair trial in Taiwan.

6. Lastly, a statement by the US State Department is interpreted in your letter as an “endorsement” of Taiwan’s legal system and the procedures followed. It should be noted that in international diplomatic language, the term “we have every expectation” means “we are concerned and we will watch the situation closely.”

For the past two decades, Taiwan has faced a difficult situation internationally. What has given Taiwan important credibility in democratic countries around the world has been its democratization. We fear that the current judicial procedures being used in Taiwan endanger this democratization, and endanger the goodwill that Taiwan has developed internationally.

In conclusion, we do remain deeply disturbed by the erosion of justice in Taiwan, and express the sincere hope and expectation that your government will maintain fair and impartial judicial practices and quickly correct the present injustices. As an editorial in the Nov. 20 issue of the London-based Economist indicated, Taiwan is “hungry for justice,” and we also hope that your government will be willing to initiate judicial reform that would move Taiwan toward a fully fair and impartial judicial system that earns the respect and admiration of democratic countries around the world.

Respectfully yours,

(in alphabetical order)

Nat Bellocchi

Former American Institute in Taiwan chairman

Coen Blaauw

Formosan Association for Public Affairs, Washington

Gordon G. Chang

Author, “The Coming

Collapse of China”

Assoc. Prof. Stéphane Corcuff

University of Lyon

Prof. June Teufel Dreyer

University of Miami

Prof. Edward Friedman

University of Wisconsin

Dr. Mark Harrison

University of Tasmania

Prof. Bruce Jacobs

Monash University

Richard C. Kagan

Professor Emeritus,

Hamline University

Jerome Keating

Author and former

associate professor,

National Taipei University

Assoc. Prof. Daniel Lynch

University of Southern California

Prof. Victor H. Mair

University of Pennsylvania

Assoc. Prof. Donald Rodgers

Austin College, Texas

Prof. Terence Russell

University of Manitoba

Prof. Scott Simon

University of Ottawa

Michael Stainton

York Center for Asia Research, Toronto

Prof. Peter Tague

Georgetown University

John J. Tkacik Jr

Senior Research Fellow,

The Heritage Foundation

Prof. Arthur Waldron

University of Pennsylvania

Prof. Vincent Wei-cheng Wang

University of Richmond

Gerrit van der Wees

Editor, “Taiwan Communiqué”

Assoc. Prof. David Curtis Wright

University of Calgary

Stephen Yates

President of DC Asia Advisory and former deputy assistant to the vice president for national security affairs