At a press conference a few days ago, President Ma Ying-jeou (馬英九) set the tone for the ongoing influence peddling affair by saying that Legislative Speaker Wang Jin-pyng’s (王金平) alleged lobbying activities have greatly hurt the judiciary’s independence.
We have no clear legal definition of what constitutes lobbying, but there are many different ways that someone can influence judicial independence. Some examples are Ma’s public comment that “judicial decisions should be consistent with public expectations” after former president Chen Shui-bian (陳水扁) was acquitted of wrongdoing in connection to a land procurement deal in Taoyuan County’s Longtan Township (龍潭), and his comment that “medical parole is tantamount to releasing him” in response to Chen’s request to be released from prison.
Another example is his rhetorical question: “If this is not lobbying, then what is?” said in reference to Wang at the same press conference.
These statements have had a clear effect on the judiciary. Thanks to the power inherent in Ma’s positions as president and chairman of the Chinese Nationalist Party (KMT), his statement in connection to the Longtan case resulted in a quick reversal of the “not guilty” and his comments about medical parole resulted in the rejection of Chen’s request. Could it really be argued that these statements did not have an effect on the judiciary’s independence?
The Special Investigation Division revealed the influence peddling affair and Wang’s alleged involvement at a press conference a few days ago and then submitted the case to the Control Yuan for further investigation. Ma was very quick to follow up on these developments by publicly defining the incident as a case of improper lobbying.
Is it at all possible that Ma’s statement will not influence the findings of the Control Yuan’s investigation? Is it possible for the KMT’s disciplinary committee to reach the conclusion that this was not a case of lobbying?
Ma says that private dealings constitute lobbying, while public expressions of dissatisfaction with a judicial decision or expressing his views of a case that still has not been finalized in a third and final trial does not. It is self-evident which of these approaches has the greatest impact on the judiciary’s independence.
There is a public consensus that judicial independence should be protected. Any action that destroys judicial independence should be condemned in the strongest possible terms. Public expressions of dissatisfaction with judicial decisions and asking prosecutors in private to give thorough consideration to whether they should appeal a verdict are both actions that could affect judicial independence.
The first approach was taken by the president as he used the media to suggest to the presiding judge how the case should be handled, as if he did not know that such action would affect judicial independence. To then make the judgment that a private conversation in an uncertain context was lobbying makes it seem that the president feels he is free to do things that others are banned from doing. With such double standards, how will he ever be able to gain the public’s trust?
The core legal value is fairness, and that means a uniformity of standards. As president and head of state, Ma should abide by the Constitution and protect democracy and the rule of law. Looking at his actions and paraphrasing Ma himself, “If this is not a violation of the law and the destruction of discipline, then what is?”
Tim Hsu is a professor of law at Chinese Culture University.
Translated by Perry Svensson