Mon, Oct 14, 2002 page8

• Burden of proof idea lacking in this nation

  • By Lin Shih-tsung 林世宗
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  PFP Legislator Diane Lee's (李慶安) sexual harassment accusation against acting chief of the Department of Health Twu Shiing-jer (涂醒哲) eventually proved to be a case of mistaken identity. But the case is not over, as the fire is spreading to the judicial and political arenas. It's predictable that Lee -- who was frequently praised as the best lawmaker in the Legislature -- will inevitably pay a considerable price.

  Perhaps there are different interpretations of this case. But the matter of evidence is the key. Although Taiwan is already a progressive society of wealth, democracy and the rule of law, it still remains a society of words that is full of random speculation and nonsense. Both the concepts of method of proof (證據方法) and burden of proof (舉證責任) are lacking or even absent. As a result, anonymous threats and wanton accusations can be seen everywhere in our society, and a defendant is presumed guilty even before the case goes to court. These threats and accusations may go away eventually. But by then public opinion has cruelly murdered an innocent person's reputation that can hardly be resurrected.

  Nineteenth-century British philosopher Jeremy Bentham pointed out that "evidence is the basis of justice" in society. Justice belongs to those who can prove the truthfulness of their words when putting everything on the basis of evidence. A dispute is usually stirred up by facts and is ended by evidence. Especially when attacking someone's reputation, one should not make the case public until irrefutable, decisive -- or at least relatively credible -- evidence with valid probative force (證據力) is found. One should never make accusations while still investigating a case, for such an action is not only extremely dangerous but also irresponsible.

  This case has deeply affected not only the parties involved but also our society to a degree, making us pay more attention to the matter of evidence. As the famous saying goes, "The presentation of evidence is the key to the success of a trial." Besides, there are strict regulations regarding the burden of proof inside the courtroom, stating that one should present evidence to prove the truthfulness of accusations. In addition, the presented evidence must actually exist and must not be speculative. Especially, we must strictly abide by the principle of presumption of innocence (無罪推定) when someone is accused of being involved in criminal actions. Thus, a defendant should be presumed innocent first -- unless he or she is proven guilty by evidence beyond a reasonable doubt (無合理懷疑). Hopefully, our society can become more sensible and maturer as we abolish our gossipy culture.

  Especially, local politicians, public figures and journalists should improve their professionalism in light of this case. They should set good examples for society and speak responsibly. Moreover, legislators should stop playing the roles of prosecutors and judges -- since they are not Bao Qingtian (包青天), the legendary 11th-century judge. They should go back to the Legislative Yuan to carry out their duties endowed by the ROC Constitution. Citizens' petitions should be handled in accordance with the law. A judicial case should be handled by the court; a misconduct case should be handled by Control Yuan members. Each individual lawmaker should not handle a case by holding press conferences in front of the media, as if staging a public trial. They should clearly remember that a legislator -- on or off the legislative floor, with or without their constitutional immunity -- should always set a good example for the public and talk on the basis of evidence.

  Lin Shih-tsung is a professor of law, Soochow University.

  TRANSLATED BY EDDY CHANG
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