Our Prescient Judiciary

Professor Jerome Cohen, Ma Ying-jeou's old law school mentor, was in town to talk to his old student yesterday. Intrepid reporter Jenny Hsu of the Taipei Times interviewed him:

Cohen, now a New York University law professor and a senior fellow of the Council on Foreign Relations, expressed confidence that most of the prosecutors and judges in Taiwan are objective and neutral.

“Since the early 1990s, Taiwan, by and large, has developed neutrality of prosecutors and judges. I have met prosecutors, lawyers, law professors [on this visit] and I have a pretty good feeling about it,” he said.

In a Nov. 13 op-ed piece, “Ties that blind,” in the South China Morning Post, Cohen said some critics complained about the arrests and incommunicado detentions of former Democratic Progressive Party (DPP) government officials, including former president Chen Shui-bian (陳水扁).

He said the investigation into Chen’s financial dealings began in 2006 while he was in office and continued after he stepped down.

“For two-and-a-half years they have been investigating Chen. This is not something they just heard about. Now [the prosecutors] tell the court they need to lock him up to prevent him from talking to other people. But he has been talking to other people for two-and-a-half years,” Cohen said.

“Without knowing more, the face of it raises real questions,” he said.

Cohen strongly supported Ma in the election. All indications out of the KMT show that the party is far more concerned about foreign opprobrium than domestic protest. Note that while KMT leaders refused to dialog with the Wild Strawberries and eventually passed a new Assembly and Parade law that is essentially old wine in new bottles, the Administration responded to the scholars statement on the detentions with an open letter defending itself, and also attempted to obtain all the addresses of the signatories so it could write them personally. Clearly the KMT regards the opinion of the outside world with deep fear.

Cohen's confidence in the judiciary is ironic in light of a Taipei Times op-ed published the other day on the Yeh Sheng-mao conviction. There's an old saying that "justice delayed is justice denied," but who has ever heard of its complement, justice happening too early? Yet that is what happened to Yeh Sheng-mao, the former intelligence chief who was given a ten-year sentence for various forms of corruption. The writer noted:

Reaching their verdict in the first trial, judges at the Taipei District Court found Yeh guilty of not only the original charge, but also five other charges, including influence peddling on behalf of Chen and forgery, and handed down a harsh sentence of 10, saying that Yeh had shown flagrant disregard for the law.

The Taipei District Court’s handling of Yeh’s case was remarkable not only for its speed, but also because the court kept referring to two other cases — Chen’s alleged abuse of the state affairs fund and his alleged money laundering — that were still under investigation. The judges even made accusations related to the Chen case in the written verdict, which makes one wonder who was really on trial on this occasion — Yeh or Chen. The fact that the judges used a case where prosecutors had yet to make any indictments in this way makes it necessary to ask whether they exceeded their powers by convicting the defendant on charges other than those originally brought against him.

The judges convicted Yeh on charges of helping Chen Shui-bian commit crimes -- this despite the fact that Chen Shui-bian is innocent. Chen has not been convicted of any crime in open court, and until that occurs, whatever the media and private opinion might say, Chen is innnocent before the law. In other words, the panel of judges convicted Yeh of crimes that had not yet been defined as having taking place. The inclusion of these crimes may well be one of the reasons private sources with legal experience have told me Yeh has a good chance on appeal.

The judges thus revealed, as the op-ed makes clear, the extent to which the system is out to get Chen Shui-bian and other Greens -- the extent to which the prosecution of Chen is a political act. Meanwhile the prosecutors continue to display this attitude -- asking that the judges put Chen back into detention after the Taipei District Court let him out on bail. Legislator Chiu Yi, himself jailed for inciting a riot and attack a government building, demanded an investigation into the judge who let Chen out of detention. Once again, it must be emphasized, that the fact that Chen is probably guilty does not mean this prosecution is not political. It just makes it easier for the prosecutors....

[Taiwan]