Wed, Dec 13, 2006 page8

• The public demands fair verdicts

  • By Josephine Lin 林玉芬
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  Amid the controversies over President Chen Shui-bian's (陳水扁) "state affairs fund" and Taipei Mayor Ma Ying-jeou's (馬英九) special mayoral allowance, the majority of Taiwanese have retained a common faith in the rule of law.

  Rooted in this belief is an almost universal expectation that the final judgement will be made through the outcome of the legal investigation.

  But confidence in the final judgment is based on the premise that the the legal investigations will lead to fair and reasonable verdicts.

  Arriving at fair and reasonable verdicts requires a high degree of legal expertise from the courts. The absolutely correct verdict requires an almost inhuman level of impartiality, although most people don't hold any illusions of that being the case. However, in today's polarized and partisan society, it's most important to demand the investigations be held to consistent standards as a way of reaching a fair and reasonable verdict.

  But with Prosecutor Eric Chen (陳瑞仁) handling the presidential "state affairs fund" case and Prosecutor Hou Kuan-jen (侯寬仁)handling the Ma investigation, what are the chances that the cases will be handled according to the high standards people expect?

  First, the different rates in which indictments lead to convictions must be considered. According to clause one, Article 252 of the Criminal Procedure Code (刑事訴訟法), the prosecutor should offer a public indictment if the evidence he has gathered during his investigation is sufficient to convince him or her that the accused should be suspected of a crime.

  In practice, prosecutors are free to render judgments according to their personal understanding of what constitutes suspicion, and the standards for leniency prosecutors have adopted in different cases are not uniform. This is more tangibly reflected in the fact that there are clear discrepancies in the conviction rates among different prosecutors. One thing is certain -- Eric Chen and Hou have very different conviction rates for their indictments.

  Second, we must consider the different possible justifications for disqualifying each prosecutor from their respective case. According to Clause One, Article 26 of the code, the prosecutor and the court secretary have wide discretion in the handling of their prosecutorial duties -- including disqualifying judges from a case.

  Clause Two of Article 18 states that if there is a condition not laid out specifically in the previous article but which constitutes grounds to suspect a judge's execution of his official duties may be biased, then any concerned party may petition to have him disqualified.

  While minister of justice, Ma attended a public memorial service for Hou's late wife and he personally certified the marriage between Hou and his current wife. Regardless of whether this situation casts doubt on Hou's ability to carry out an impartial investigation of Ma's mayoral accounts, Article 3 of the code limits the concerned parties to the public prosecutor, the private prosecutor and the defendant -- meaning that people can't normally petition that the prosecutor be disqualified on the same grounds.

  Overall, one thing appears certain: Of the two prosecutors, there are doubts surrounding only one as to whether there is cause to disqualify him.

  Third, both men have differing interpretations of the law. When dealing with the same crime, the legal views of each prosecutor allow for varying degrees of certainty in deciding what conditions must be met and what kind of evidence must be presented in order to make a judgement.

  Each prosecutor must also specify criminality based on his or her understanding of the severity of the case. In investigating the presidential "state affairs fund" allegations, Eric Chen treated malfeasance as automatically constituting a crime and did not make the prosecutors responsible for proving where the funds may have gone after being embezzled.

  However, Hou seems to have accepted Ma's insistence that he donated the funds to public welfare causes and that the fact that he donated more than he took from the fund proves that he didn't intend to engage in corruption. This illustrates that Hou may not believe that embezzlement automatically constitutes a crime.

  Because of these three disparities, it is much less likely that the various cases and accusations being traded between pan-blue and pan-green politicians will be handled according to the same standards and reach fair and reasonable verdicts. Based on the principle of a single prosecutorial system, I suggest that Ma's investigation be merged with President Chen's so that the verdict is as fair and reasonable as the people have demanded.

  Josephine Lin is a lawyer at Law and Justice Attorneys at Law.

  Translated by Marc Langer
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