ROC Judiciary Blasted: Day of Democracy Commentary

To accomplish this, we can rely on the Constitution to protect human rights, uphold law and order, make justice independent and impartial, and breathe new life into civil society. Taiwan's democracy should not be marred by illegal eavesdropping, arbitrary justice, and political interference in the media or electoral institutions. All of us share this vision for the next phase of political reform. -- President Ma, inaugural speech

Today saw a wonderful concatenation of pieces across Asia on human rights and democracy in the region. Yesterday Jon Adams had a great piece in the Christian Science Monitor on the Charter '08 signatories and how worried the Communist Party is about them. Today it was picked up by blogs and aggregators all over Asia, like the popular blog Peking Duck, with over 300,000 Chinese websites linking to it. Those Charter '08 guys! I wish they'd stop provoking China....

The Taipei Times published two diametrically opposed pieces today on justice here in Taiwan. The first was a letter from the Ministry of Justice in response, the latest in an exchange of letters between a group of prominent foreign Taiwan experts and observers and the Ministry that began with the recent arrests and detentions of prominent DPP politicians. Wang Ching-feng, the current Minister of Justice, is a strong supporter of the nutcase theory that Chen had himself shot in 2004 and convener of the 319 commission that investigated it with that in mind. The reader is invited to consider how non-partisan Wang can be in the Chen case. As if in reply to Wang, the Taipei Times also hosted a commentary by Su Tseng-chang, the 2008 DPP Veep candidate, who way back when, was a human rights lawyer defending the Kaohsiung 8. Both should be read.

The KMT has been conducting a private PR campaign aimed at the signatories of the letter and prominent critics of the erosion of democracy here. When foreigners speak, they can strike fear into the government here.

That is why the real highlight of the day's pieces is Jerome Cohen's stunning rebuke to Taiwan's judiciary, delivered in this morning's South China Morning Post. Look at that awesome second paragraph there:

When analysing the experience of the US Supreme Court, the late Charles Evans Hughes (chief justice 1930-39) commented: "The gravest wounds are self-inflicted." Taiwan's courts should reflect on that wisdom. The prosecution of former president Chen Shui-bian has not even come to trial. Yet his judges have already bungled the historic opportunity Chen's case presents for the judiciary to confirm its independence, impartiality and competence.

The vibrant democracy for which so many in Taiwan have struggled is in trouble. Corruption threatens the integrity of the political system. This cancer cannot be controlled without a credible, fair and transparent judicial system to enforce the law.

Cohen is a member of the Establishment think tank the Council on Foreign Relations (CFR), which has strongly supported the "peace process" between Taiwan and China, and Ma Ying-jeou. It appears to hew to the Establishment view that China will become a tractable member of the international system under US leadership, and that Taiwan is an irritant that provokes China. More importantly, however, Jerome Cohen is President Ma Ying-jeou's mentor from law school.

Damning.

Cohen discusses the removal of judge Chou (whom both Su and Cohen note presided over a court that specialized in financial cases) and his replacement by Judge Tsai. He also searches for a way to restore the judicial system's lost integrity.

There are only two things to be said: first, a hearty thanks to Cohen for this devastating, timely and expert piece. Hopefully it will lead to change here.

I am not going to say the other thing. Prodigal son and all that. Cohen's piece is below. Enjoy!

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Chen Judges Bungle Their Chance
Jerome Cohen
Jan 08, 2009

When analysing the experience of the US Supreme Court, the late Charles Evans Hughes (chief justice 1930-39) commented: "The gravest wounds are self-inflicted." Taiwan's courts should reflect on that wisdom. The prosecution of former president Chen Shui-bian has not even come to trial. Yet his judges have already bungled the historic opportunity Chen's case presents for the judiciary to confirm its independence, impartiality and competence.

The vibrant democracy for which so many in Taiwan have struggled is in trouble. Corruption threatens the integrity of the political system. This cancer cannot be controlled without a credible, fair and transparent judicial system to enforce the law.

Following Chen's November 11 arrest, despite the deep political divisions and partisan suspicions of Taiwanese society, the prosecution's detailed allegations of massive corruption by Chen, his family and colleagues had prepared the public to accept the prospect of their guilt and punishment.

Their convictions after proceedings perceived to be fair would vindicate the values of clean government, deter potential wrongdoers and heighten confidence in courts that began to free themselves from decades of authoritarian Kuomintang government fewer than 20 years ago.

Unfortunately, recent court proceedings have mocked that promise. Unless some unexpected, bold action restores public confidence, convictions of Chen and his associates will enhance popular cynicism and deny the courts the broad support required by any successful judiciary.

What happened? Chinese have traditionally emphasised substantive criminal law - guilt or innocence - rather than procedure. Yet, recent events, reflecting Taiwan's gradual transition from an inquisitorial to an adversarial system, focused attention on two related sets of criminal process issues: pre-trial detention and the merger of separate prosecutions.

The battle between Taipei District Court Judge Chou Chan-chun's three-judge panel - which twice took the unusual step of ordering Chen's release without bail, pending trial - and Taiwan's High Court - which twice reversed that decision - only ended when the case against the Chen group, originally assigned by lot to Judge Chou's panel, was merged into the earlier prosecution of Chen's wife for embezzling special state funds. That case is being handled by Judge Tsai Shou-hsun's panel.

The transfer made it possible for Judge Tsai to preside over Chen's third post-indictment detention hearing. His panel ordered Chen's return to detention, in a decision that contradicted the spirit of the Council of Grand Justices' Interpretation No653, issued several days earlier. The interpretation eloquently emphasised that the criminally accused should only be detained when no other measures suffice. Although this time Chen is not being handcuffed and held incommunicado, as he was for 32 days before indictment, any conversations with visiting family and even his lawyers can be monitored and used as evidence against him, and them!

Detained defendants are obviously hampered in preparing their defence in other ways, such as by discussing the case with co-defendants and witnesses, which was one of the prosecution's two main fears if Chen remained free pending trial. The other is that, if released, Chen might flee Taiwan. Judge Tsai could have released Chen under high bail and residential restrictions that made flight unlikely. Chen's incentive to flee will increase if he is convicted at trial. Does this mean he will continue to be detained if he appeals against any conviction? This would mean incarceration for years before final conviction.

At what point does the presumption of innocence become meaningless and pre-conviction detention morph into punishment for a crime not finally proved?

The dilemmas of a defendant's detention before final conviction plague every country. More distinctive to Taiwan are the unresolved mysteries surrounding the recent merger of the Chen group's case into the embezzlement case brought against his wife in 2006 - a time when Chen, although involved, still enjoyed presidential immunity from prosecution.

If such a merger was necessary, why was it not effected when the indictment against the Chen group was issued? Instead, the district court decided that the new indictment, which featured money-laundering and other complex charges - plus the earlier embezzlement charge against Chen - should be assigned to a separate judicial panel by lottery.

The lottery was limited to the few panels deemed more specialised than Judge Tsai's for dealing with complex financial transactions. How, then, can the court justify the subsequent assignment to Judge Tsai? Can the random assignment of cases essential to judicial neutrality be so easily circumvented?

According to the court's official press releases, assignment to Judge Tsai by the court's merger review panel followed court rules. Yet that review process could only be initiated by request of the judge in charge of the later case. Why did Judge Chou make that request? Was he pressured to do so? Why did the review panel not accept his proposal to transfer to Judge Tsai only that part of the group indictment relating to the embezzlement case against Chen and his wife, leaving the more complex accusations to Judge Chou's panel, as the court originally intended? Why did the review panel consist of merely five of the relevant criminal division chiefs? Why did the merger issue only become salient after the second time Judge Chou ordered Chen's release? Was this entire non-transparent process the court's response to angry public criticism of Judge Chou? Did any politician intimidate the court with secret threats?

Answers to such questions will eventually emerge. More immediately, is there any way to guarantee the Chen group and the public a judicial process that will have both the appearance and the reality of justice? Why doesn't Judge Tsai, who reportedly did not want to take on the new case, withdraw from handling all but the earlier embezzlement charges against the Chens? Then the district court can return to its original intent and again select by lot a judicial panel of financial specialists to deal with the complex accusations of the new case.

The new panel might even approve another application for Chen's release pending trial, with high bail and strict residential restrictions. Then both trials could proceed with broad public support. Justice, as the saying goes, must not only be done, but must also be seen to be done. That is the price of judicial legitimacy.

Jerome A. Cohen is co-director of NYU's US-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations

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SPECIAL TO ESWN: Popular Asian blogger Roland Soong at ESWN, who holds both Taiwan and its democracy in complete contempt, claimed that AP had published a "hit piece on Ma Ying-jeou" the other day.

Gosh Roland... think the piece today in SCMP by Jerome Cohen, Ma's mentor, is a hit piece too? Think Amnesty's complaints about excessive policy force were a hit piece too? What of Freedom House's call for an independent inquiry into the clashes here? How about Reporters without Borders and the International Federation of Journalists criticizing the President for failing to protect media freedom here? Think John Manthorpe and Jerome Cohen, were writing hit pieces when they were critical of the government on the detentions of DPP politicians? Was Julian Baum's recent writing in FEER a mere hit piece? How about the worry expressed by a Federation of more than 150 human rights organizations worldwide? The irony of ESWN's Soong enthusiastically putting up links to Glenn Greenwald's hard-hitting pieces on the erosion of democracy in the US under the Bush Administration, while simultaneously cheerleading the anti-democracy side in Taiwan's politics, would be high comedy if it were not such a low, needless, retrograde tragedy.

UPDATE: China Times has Cohen in Chinese.

[Taiwan]