Thu, Nov 18, 1999 page4

• `Big Brother' makes way for due process of law

  CIVIL RIGHTS For over 40 years there was no guarantee of a fair trial in Taiwan, but in the last decade justice has asserted itself and come of age

  • By Irene Lin / STAFF REPORTER
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  In his classic novel 1984, British writer George Orwell portrayed a future authoritarian society in which all citizens are brainwashed with slogans such as "Freedom is Slavery" and "Ignorance is Strength." While the omniscient authority -- called Big Brother -- kept strict control over every aspect of the lives of citizens, the concept of civil rights was non-existent in a world where social order was the top civil priority.

  In Taiwan, as well, citizens lived for nearly four decades with little anticipation of any recognition of their inherent rights, just as Orwell depicted the citizens of the superstate Ocenania.

  In the era of martial law rule, from 1947 to 1987, it was considered a privilege for an ordinary Taiwan citizen to claim any right to an impartial trial. The guarantee of due process in the criminal justice system -- which is today widely perceived as essential to civil rights in any modern democracy -- was virtually unseen in any ordinary criminal procedures in Taiwan.

  However, as the Big Brother of Taiwan's former authoritarian rule has gradually taken its hand away from the functions of the judiciary, during the past decade of democratic and legal reforms, a long running campaign for due process in the legal system has claimed at least partial success in Taiwan's criminal justice system.

  Judicial Independence

  The former iron grip of country leaders has, during this time, gradually conceded to growing demands for judicial independence and more recently, an increasing awareness of the due process of law.

  "It used to be a failed attempt for me to warn the police not to violate due process in investigating criminal cases. But it has changed substantially in recent years," said Chen Jui-jen (3窈??/CHINESE>), a public prosecutor at the Shihlin district prosecutors' office.

  Chen said that when the executive branch of the government gradually released its control over judicial affairs, Taiwan's court system became more independent in determining whether investigative agencies had undermined the civil rights of crime suspects in the process of criminal investigations.

  "Now, I have to say `no more'," Chen said, laughing, "because the police themselves would phone me up from time to time and inquire about the legality of the things they planned to do."

  A recent decision by the Taipei district court over the inadmissibility of illegally-obtained evidence is being perceived as a critical ruling that embodies the due process of law. In compliance with the so-called "exclusionary rule," under which the use of any illegally-obtained evidence is disallowed, the district court acquitted a suspected robber on the grounds that the suspect's confession was extracted during a nighttime interrogation, which is now against the law.

  In December 1997, significant amendments to the Criminal Procedure Code passed the legislature, as a further guarantee for civil rights through due process of criminal justice.

  Aside from a decisive change that handed authority for detention back to the court system, the 1997 amendments installed articles called the Miranda Warning, under which the police must give fair notice to suspects before conducting interrogations. Without "reading a suspect his rights" the statute says, a suspect's answers may not be used as evidence in a trial.

  The Miranda warning requires that the suspect be told that he has the right to remain silent, the right to have an attorney present when being questioned, the right to a court appointed attorney if a private attorney is unaffordable, and the fact that any statements made by the suspect can be used against him in court.

  At the same time, the amendments of 1997 also prohibited interrogations that were overly exhaustive or went on through the night.

  Lin Yu-hsiung (林鈺雄), an assistant professor of law at National Chengchi University, said the recent ruling by the Taipei district court is a lesson to law enforcement officials who used to disregard due process in their ruthless pursuit of crime-busting records.

  In fact, the Taipei District Court ruling is not the only one in the island's criminal system that complies with the exclusionary rule.

  Court Reversals

  Over the last few years, there have been a series of court rulings that manifest the inadmissibility of illegally-obtained evidence.

  In 1996, during deliberations over the trial of a suspected drug addict, the Hualien district court dismissed both the prosecution's physical evidence and the defendant's confessions, on the grounds that they were obtained through illegal search and arrest.

  The court then decided to acquit the defendant and, most importantly, the police officer then investigating the case became the subject of a criminal investigation himself.

  Moreover, in a 1998 judgement on a drug-smuggling case, the Supreme Court made it clear that any evidence obtained through illegal wiretaps could not be allowed in a criminal trial. Then, in another ruling this year which is reckoned to further enhance the civil rights of defendants, the Shihlin District Court acquitted a suspect in a drug-trafficking case.

  Law Enforcement

  The reason for the dismissal was merely the suspicion that confessions of guilt -- which was the primary evidence of an alleged crime -- were extracted under torture by police. In Taiwan as in other countries, the police are under constant pressure to crack criminal cases, either for the reason of public safety, or else for the credit and career promotion of the officer concerned.

  Under such circumstances, therefore, officers can often get too involved in efforts to break cases, to the point where they can actually break the law themselves.

  "Among some of them, it's even a common practice to use illegal means, with the only intention of adding to their own [arrest] records," Lin said. "But we shouldn't accept the notion that public safety should be protected by illegal means. It's so ironic that law enforcers, in their efforts to enforce the law, often break the law themselves in the process."

  One answer to the problem, Lin said, is to lean on the judiciary to prevent this from happening.

  "When things like this happen, we can only rely on the court to teach these police officers about their attitude toward law-enforcement. Only when their efforts come to nothing upon the court's announcement of a not-guilty verdict, will these people realize it's time to take the law seriously," Lin said.

  In comparison to the results of court rulings, due process is often given less emphasis in Taiwan society. This is due in part to the result of public doubt, namely, whether ensuring defendants get their due process in criminal procedures actually gives too much protection to the presumed "bad guys."

  But Lin Tzu-yi (林?l儀), a professor of law at National Taiwan University, pointed out that even in recognition of the importance of social order, it is not allowable for law enforcement officials to break the law.

  "If the law enforcement agencies of a country have no regard for the due process of law, the bad guys could be you or me on any given day," Lin said.
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