Courts must heed people’s wishes

By Huang Di-ying 黃帝穎  / 

Sun, Mar 17, 2013 - Page 8

In the early hours of Nov. 4, 2008, prosecutors raided Yunlin County Commissioner Su Chih-fen’s (蘇治芬) residence and arrested her on suspicion of corruption. However, she was found not guilty in her first and second trials, and received a final not-guilty verdict in her third trial in the Supreme Court.

Nevertheless, prosecutors, who contravened the principle of proportionality in arresting Su without having issued a court summons, seem to have got away with it.

Last year, the Liberty Times, (the Taipei Times’ sister newspaper), published a table showing cases in which members or associates of the Democratic Progressive Party (DPP) have been charged and found not guilty.

The table listed 14 people: former Nantou County commissioner Peng Pai-hsien (彭百顯), former Tainan mayor Hsu Tain-tsair (許添財), former National Security Council secretary-general Chiou I-jen (邱義仁), former deputy foreign minister Michael Kau (高英茂), former National Science Council deputy minister Hsieh Ching-chih (謝清志), former National Palace Museum director Shih Shou-chien (石守謙), former vice president Annette Lu (呂秀蓮), former premier Yu Shyi-kun (游錫堃), former Tainan deputy mayor Hsu Yang-ming (許陽明), former presidential office deputy secretary-general Chen Che-nan (陳哲男), former director of the Kaohsiung Bureau of Rapid Transit Systems and deputy minister of Transportation and Communications Chou Li-liang (周禮良), DPP Legislator Huang Wei-cher (黃偉哲) and former DPP legislator Wu Ming-min (吳明敏).

All of them, as well as former presidential adviser Wu Li-pei (吳澧培), were indicted by prosecutors but found not guilty in a court of law, just like Su.

How is it that prosecutors, with the connivance of several media outlets, can set up these DPP politicians by portraying them as a corrupt clique, and yet so many of the people they accuse end up being found not guilty?

Have the media that portrayed these people as corrupt put any effort into restoring their reputations?

Have prosecutors who brought these prosecutions apologized to the victims or to the public?

Supreme Court Precedent No. 1785, which was set in 1965, maintains that the crime of prosecution in abuse of authority (濫權起訴罪) is one that infringes on the state’s judicial authority.

To put it simply, the definition adopted by the court protected prosecutors by saying that members of the public who were subject to prosecutions in abuse of authority were not “victims.”

As a result of that definition, people who have been tormented and victimized by the judicial process, yet eventually cleared, cannot take out a private prosecution or sue the prosecutors who abused their authority.

The Council of Grand Justices has found a comparable anachronistic legal opinion to be unconstitutional.

Referring to the Code of Criminal Procedure (刑事訴訟法) and the question of adultery, constitutional interpretation No. 569 says: “While Article 321 of the Code places a restriction on a person’s right to initiate private prosecution against his/her spouse, it does not prevent him/her from initiating a legally private prosecution against the one who commits jointly with his/her spouse an offense indictable only upon complaint.”

For this reason, the grand justices’ interpretation rules that Supreme Court precedents to the effect that “a person is not allowed to institute private prosecution against the one who commits jointly with his/her spouse an offense indictable only upon complaint … are contrary to the purpose of the Constitution.”

In other words, precedents that restrict people’s right to litigation without any legal basis are unconstitutional and therefore null and void.

In view of this, the courts should abandon the retrograde notion that malicious prosecutions have no victims. They should recognize the absurd situation where prosecutors have authority without responsibility.

One thing that courts can do is to a give a proper hearing to cases lodged by victims seeking redress.

On Monday last week, an alliance of judicial victims issued a declaration calling for a “metamorphosis” of Taiwan’s system of prosecution.

The declaration stated that the purpose of resisting prosecutors who abuse their authority is to “break open the cocoon” of prosecutors who work for political ends under the guise of carrying out judicial duties, and to complete the process of depoliticizing the judiciary and restoring justice to the public.

This is what most people in Taiwan want to see, and the courts should take heed and respond to this call for justice.

Huang Di-ying is a lawyer.

Translated by Julian Clegg