Tue, Sep 22, 2009 page3

• ANALYSIS: Chen’s case highlights judicial shortcomings

  REFORMS NEEDED A law professor, a lawyer and a former member of the Judicial Yuan said that many questions had been raised by the way the case was handled

  • By Ko Shu-ling / STAFF REPORTER
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  The corruption case against former president Chen Shui-bian (陳水扁) and his family has prompted a wide range of responses.

  Some said that it shows the nation’s judiciary is hard on corruption and secret political donations. Others, however, argue that it was a clear example of political persecution by the Chinese Nationalist Party (KMT).

  Most analysts agree that it illustrates the shortcomings of a legal system in transition.

  Chen, who has been in custody since December, has asked his lawyers to file an appeal. Despite his repeated calls for the court to release him, the district court overruled his last request. The current detention order expires on Friday.

  The life sentences meted out to Chen and his wife has sparked a heated debate.

  Shilin District Court Judge Hung Ying-hua (洪英花) criticized procedural aspects of the trial and was quickly shot down by President Ma Ying-jeou (馬英九), who reportedly dismissed her criticism as a violation of legal ethics.

  Minister of Justice Wang Ching-feng (王清峰) said it was up to the Judicial Yuan to decide whether Hung’s outspokenness was appropriate. The Judicial Yuan said judges should be careful what they say.

  Jiang Huang-zhi (姜皇池), an associate professor of law at National Taiwan University, said the case was more of a political vendetta by the KMT than a crackdown on corruption. If the legal system genuinely wanted to be tough on corruption, he said, half of the KMT members would be thrown into jail.

  While Chen seemed to have high hopes for his appeal, Jiang said the former president had no choice but to trust the legal system, which he said has made tremendous progress over the years despite repeated criticism.

  Nevertheless, there was still a lot of room for improvement, Jiang said.

  The legal proceedings were marred, he said, including the leaking of confidential information to the media.

  While it was unclear if the leaks came from prosecutors, Jiang urged reporters to exercise self-restraint when obtaining such information to refrain from misleading public opinion and pressuring the judiciary.

  Judicial Reform Foundation executive director Kao Yung-cheng (高涌誠) said he did not fully agree that Chen’s case was a political vendetta, but felt the sentencing was too severe.

  Chen was bearing the consequences of doing a poor job in tackling problems caused by transitional justice and judicial reform during his eight-year presidency, Kao said.

  Among the shortcomings in the case, Kao said, was the quality of prosecutors and judges, whom he described as conservative and keen to follow public opinion.

  “The judiciary must be hard on corruption, but it must also take human nature into account rather than merely following the letter of the law,” he said.

  “Except for sending out a clear message to future presidents that they will be severely punished for committing graft, I don’t see the ruling doing the country any good,” he said.

  The judicial process was controversial, but was not handled fairly after the problems were raised, Kao said.

  The problems he cited included the district court’s unusual transfer of the case to Judge Tsai Shou-hsun (周守訓), who had acquitted Ma in a corruption case linked to his terms as Taipei mayor, and the pre-trial detention of Chen, which raised constitutional questions.

  Kao questioned Tsai’s inconsistency in his positions on Chen and Ma’s cases, saying that it was unfair to interpret the president’s discretionary fund and the mayor’s differently.

  Kao also criticized the Witness Protection Act (證人保護法), whose spirit he said was to ensure lighter sentences for those who confess.

  He said he was not against reducing or exempting the sentences of witnesses if they cooperated, but the system was flawed because a witness was likely to exaggerate the facts in order to gain a better deal.

  The Council of Grand Justices has accepted a request to interpret the constitutionality of the transfer of Chen’s case, and Kao urged the council to deal with the issue in a speedy manner.

  Politics could be playing a role in the council’s delayed decision because some grand justices do not want to be labeled as Chen supporters by upholding the constitutional challenge to the transfer of judges.

  Hung was entitled to speak out because her criticism was aimed at procedural aspects rather than the verdict itself, Kao said.

  The judge, however, might want to take a lower-key approach by expressing herself through internal channels, he said, but it was also debatable whether Ma should have denounced Hung for violating legal ethnics.

  To restore confidence in the judicial system, the legal system must be overhauled to ensure fairness in the judicial process, Kao said.

  “Without fairness, the verdict will be questionable,” he said.

  He also proposed putting civilians on the judges panel to decide a case.

  To guarantee the quality of professional judges, he said, a law must be enacted to weed out inferior judges.

  Former Judicial Yuan vice president Cheng Chung-mo (城仲模) said the modern concept of justice had been progressing and changing for more than a century, but the results in Taiwan were unsatisfactory.

  Apart from rebuilding the system, Cheng said the judicial education and training programs must be revamped as well.

  A law school graduate can become a judge at age 24, Cheng said.

  “Some of them probably haven’t even been in love. How do you expect them to judge a murder or insider trading case?” he said. “The court panel handling a former president’s case should be formed by judges of a higher caliber and better credentials.”

  Cheng, a former grand justice, said the composition of the Council of Grand Justices might not be the major factor in its delayed interpretation of constitutional questions concerning Chen’s case, but it was a significant one.

  “No matter who nominated them, they must realize that their responsibility is to be fair, determine the truth and facilitate justice — not to serve the interest of the president who nominated them,” he said.

  If the council had upheld the constitutional challenge, he said, it would invalidate Chen’s trial.

  While Chen seemed optimistic, Cheng said he was afraid history would repeat itself if particular judges were again assigned to handle Chen’s case.

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