Some statements: First from Dr. Michael Stainton, President of the Taiwanese Human Rights Association of Canada.
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Guilty by verdict, by not by evidence
On September 11 the Taipei District Court issued a verdict and sentence in the bundle of corruption cases centered on former President Chen Shui-bian and first lady Wu Shu-chen. To the surprise of no one, Judge Tsai Shou-hsun found them guilty on all the charges in the Special Prosecutor’s Office December 2008 bill of indictment, and imposed the maximum penalty. President Chen was sentenced to life imprisonment, permanently stripped of his civil rights, and fined two hundred million NT$ (US$6 million). Wu Shu-chen received the same sentence except she was fined three hundred million. Other accused received far lighter sentences.
There are actually several cases here. Readers can be forgiven for not wanting to know all the details. But this case should be of concern because it is one more piece of evidence that the process of democratization in Taiwan is being reversed as the Chinese Nationalist Party (KMT) moves this island ever closer mother China, where a trial like that of President Chen would be normal operating procedure. A brief review of the charges, even without recounting the procedural absurdities and injustices which have marred the process, can show why Chen’s lawyers and foreign Taiwan watchers predicted exactly this outcome.
The first is case is about money laundering. Chen is now convicted of transferring stolen money overseas to avoid detection. However, we still do not know if it was actually stolen. If one has the stamina to read the 202 pages of Chinese in the indictment, one first crawls through some 190 pages detailing a mind-numbing multitude of bank transfers and how Wu Shu-Chen, her children and her brother moved large amounts of cash around the world. In this there is no mention of President Chen being involved. Finally, after the 194th page, the indictment exclaims how could President Chen not have known about all this, and baldly states that he was a knowing and willful co-conspirator. But the only bit of evidence it presents linking Chen to all this is that he once made a phone call to a bank about a problem with one of these accounts. Other evidence of the crimes of President Chen is a brief sermon about how he violated the high principles of his presidential oath of office, and showed a bad and unrepentant attitude by refusing to confess his guilt.
Moving money around the world is only money laundering if the money is illegally obtained and so needs to be laundered, and here the evidence presented in the indictment is equivocal. Most of the money involved was the surplus from the presidential election campaigns of 2000 and 2004. In Taiwan surplus election funds are the personal property of the candidate, and there are no clear laws on its use or requirements that it be held for future elections. Everyone in Taiwan deplores this situation, but the laws have been kept loose for years precisely to facilitate the KMT’s own use of its own immense resources. Along with most of the other bills the Chen administration presented to the KMT-controlled legislature, attempts at legal reforms were deferred, blocked or mutilated by amendments.
In several public statements even before he was arrested Chen apologized that he had not acted wisely or transparently in the use of his election funds, but also pleaded that as president he had neither the time nor legal right to be involved in the financial dealings of his family. Wu managed all their money. It is widely known in Taiwan, even among their friends, that Wu loved money and that in recent years her relations with her husband had become strained. Chen claims that when these accusations became news he questioned her about them and that she was less than honest with him, so that he was not in the loop.
Chen is also accused of misuse of state funds – embezzlement – in relation to the secret foreign affairs and presidential discretionary funds which he used the same way as previous presidents. The difference is that previous presidents were all KMT and so their use did not constitute misuse. More astounding is that the detailed figures of use of these funds and Chen’s bank records gives no evidence that President Chen pocketed any of these monies, but the assumption of guilt was good enough for Judge Tsai.
The third charge is receiving bribes in the case of land acquisition for a high tech science park, and here it is proved that monetary gifts were given to Mrs. Chen who inserted herself into these negotiations. However, all testimony in this case agreed that President Chen had no involvement in the land negotiations or knowledge of the gift. One could reasonably conclude with the prosecutor “how could he not know”, but this begs the question – your knowledge of the wrongdoing of others is not a basis for finding you guilty of their crime.
To make this more interesting, there is a very recent precedent in Taiwan of a bribery case involving a senior politician and his wife. In 2006 the magistrate of Hsinchu County, Zheng Yongjin, was convicted of receiving a bribe from a contractor in pursuit of work on a large project. The “moon cake box” case was the subject of much merriment in Taiwan as the contractor (who sang like a birdie once he was arrested) delivered the money as a gift in a box of moon cakes. This was received at the door of their home by the magistrate’s wife. Mr. Zheng continued to serve as magistrate even after his conviction while he appealed. In December 2008 the appeal court found him not guilty because there was no proof that the magistrate himself received the money or knew it was given by the contractor. You might think this would be a precedent in the case against President Chen, but this shows how little you know about the reborn Republic of China’s justice system. Mr. Zheng is a loyal member of the KMT and was convicted while the party was out of power. In December 2008 the KMT was back in power and the party-state was getting back to normal operation.
In contrast to Magistrate Zheng who continued to administer the affairs of a Hsinchu county as a convicted criminal, President Chen was arrested as soon as the charges against him were laid, on November 11, 2008 and has been detained as a “major felon” ever since. I discovered what this meant in June when I became the first foreigner to visit him. There are three kinds of visiting rooms – the “regular prisoner visiting room” where face to face visits take place, the “special visiting room” where you can sit on a sofa and have tea together. I visited a Columbus Leo, a Taiwanese Canadian charged with the crime of advocating Taiwan independence, in this room in 1990. I saw President Chen in the “major felon visiting room”, a hot stark cell divided by a wall and thick plate glass. You talk through a telephone, controlled and watched by a guard from a glass wall beside you. Chen was also accompanied by a guard in his half of the cell taking notes during our twenty minute visit.
One might think that the President of the country for 8 years might get the special visiting room, if only for the dignity of the country, but this fails to take account of the fact that Chen was the unabashed President of Taiwan, and we are now back in the old Republic of China, so not the same country. He is getting special treatment though. Even his discussions with his lawyers were recorded (and sometimes leaked) until protests from lawyers associations led the Council of Justices (Taiwan’s equivalent of a Supreme Court) to say this was unconstitutional, but still gave the prosecutors 4 months to clean up its act.
Chen did apply for release on bail, and this was granted once, on December 13 after the Special Prosecutors Office announced the completion of its investigation. But KMT politicians and media raised such a cry of outrage that three days later the judge who granted him bail was removed from the case (and also threatened with impeachment) and the new judge, Mr. Tsai who has just found him guilty of everything, immediately ordered him detained again on the claim that he might flee the country (this though he is accompanied by an ex-presidential security guard at all times), or seek to cover up evidence (despite the fact that the Special prosecutor’s Office began investigating all these charges in 2006) or that he might collude with others to influence their testimony (despite the completion of the investigation). Another later bail application was denied because Chen had not been “cooperative” with the court.
There has not been a show trial or a political sentence like this in Taiwan since the 1980 military trials of the Taiwanese opposition after Kaohsiung Incident. Ironically, Chen Shui-bian was one of the defense lawyers in those show trials. Things have come full circle. After two decades of astounding the world with its vibrant democratization and spunky nationalism in the face of Chinese threats, Taiwan is once again the Republic of China. Under the KMT the justice system once again serves the larger interest of the party.
(Michael Stainton is President of the Taiwanese Human Rights Association of Canada)
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The Democratic Progressive Party’s Statement Concerning
The September 11 verdict in the case of Former President Chen:
1. Taiwan is a democratic country and in dealing with former President Chen’s case, the judicial process should be objective and follow legal principles, avoiding any subjective and political bias in order to safeguard Taiwan’s democratic values. We can see that during this first trial the process contained flaws and disputes that were clearly in violation of procedural justice. These actions included the continued detention of former President Chen, changing judges during the trial and today’s heavy sentence. This confirms doubts from the outside and makes it hard to convince people that the judicial process is trustworthy.
2. The same judge presided over the cases of former President Chen's state affairs fund case and then-Mayor Ma Ying-jeou’s special affairs fund case. Former President Chen was given a sentence of life imprisonment while President Ma was found not guilty. With such diametrically different results, society will find it difficult to accept the verdict in former President Chen’s case.
3. The DPP has great expectations of the judicial system of Taiwan, but it expresses its deep regret concerning the trial process and heavy sentence given former President Chen. The DPP supports former President Chen’s appeal in order to ensure that he has the legal right to defend himself. At the same time, we also expect that the unfairness and errors of the first trial will be closely supervised and corrected during the appeal process.
4. The DPP believes that there is no necessity in detaining Former President Chen after this first trial. . We appeal to the court to end this detention, giving Former President Chen the right to exercise his legal rights and prepare for his defense.
5. In regards to the selection of judges for the appeal, we ask the High Court to be transparent and open, in accordance with legal procedures and to also accept outside supervision.
6. We must appeal to all walks of life, especially the ruling party, not to politicize the case of former President Chen in order to turn the public spotlight away from government inefficiency. We also appeal to the public to avoid provocative remarks that would result in emotional confrontation in our society.
7. Whether one stands for or against Former President Chen, it must be sincerely pointed out that the proceedings of the judicial system contained defects, which were caused by political interference in the judicial system as well as by the judges being somewhat prejudiced in their sentences. In addition, we also saw the continued detention of former President Chen harm our human rights system. We hope that the community can now focus on judicial human rights and jointly support judicial reform.
8. As the KMT holds a 75% majority in the Legislative Yuan, we demand that in his role as KMT Chair President Ma take up the responsibility to support and promote amendment of the "Code of Criminal Procedure" and "Judges Law" for the reform of human rights violations in the detention system and also eliminate unsuitable judges. Last year the DPP put forward an amendment to the "Code of Criminal Procedure", and we ask that in the shortest time possible, this amendment be passed.
9. We wish to make clear that honesty and clean politics are the unflinching values of the Democratic Progressive Party and the basis upon which people place their trust in politicians. Whether or not a politician or political party has been honest and practiced clean politics must be judged through a fair administration of justice and a clear set of standards. The people of Taiwan have placed high expectations in the DPP, which the DPP must treasure.
In regards to former President Chen’s action of remitting funds overseas, the DPP considers this action to have mixed public and private funds and to be in violation of the DPP’s Independent Commission against Corruption regulations. Regarding former President Chen’s management of political funds, the DPP believes it triggered disputes between government and business entities, and failed to meet society’s expectations. In regards to former President Chen and his family, the DPP believes former President Chen was negligent in constraining them, resulting in the many negative criticisms from the public. The DPP firmly holds to the standpoint that for these errors, former President Chen must take political responsibility.
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FAPA EXPRESSES OUTRAGE OVER
SENTENCING OF FORMER PRESIDENT CHEN
The Formosan Association for Public Affairs (FAPA), a Washington DC-based advocacy organization of Taiwanese Americans, today expressed outrage over the heavy sentences meted out on September 11th 2009 in Taipei to former President Chen Shui-bian and his wife Wu Shu-chen.
“This is political persecution by judicial means” states FAPA President Prof. Bob Yang. He adds: “Chen’s real “crime” is that he pushed the entrenched Kuomintang regime out of office in 2000, and moved Taiwan in the direction of freedom and independence.”
Yang adds: “Many international scholars have expressed concern about the legal process. If we examine similar past graft cases in Taiwan and other countries around the world, this unusually heavy sentence given to Chen only reinforces the belief of many Taiwanese citizens and international scholars that the charges against Chen are politically motivated. FAPA calls upon the KMT authorities to release former President Chen pending the further appeal procedures, which are bound to take a long time. His incarceration is making it sheer impossible for him to build an adequate defense, denying him a truly fair trial.”
Yang concludes: “The Kuomintang government could have moved Taiwan in the right direction by conducting a scrupulously fair trial. Instead, they blew their chance and turned it into a political circus, deepening the political divide in Taiwan.”
“It is a sad day for Taiwan’s young democracy.”
The life sentences to Chen and his wife are making it increasingly difficult to bridge the political divisions on the island. In the 1980s and 1990s, Chen was part of the vanguard of the island’s democracy movement, mainly consisting of native Taiwanese who had been kept out of the political by the ruling Kuomintang, which came over from China after World War II.
Historical Background
During some four decades of Martial Law (from 1949 through 1987), the Kuomintang regime – first headed by Chiang Kai-shek and later by his son Chiang Ching-kuo – ruled with iron fist, in a one-party system which ruthlessly dealt with political opponents. Chen and his wife themselves were victims of this system: in 1985 Chen served eight months in prison on political charges, while Wu Shu-chen was paralyzed from the waist down after being hit by a truck during a post-campaign rally.
Taiwan’s transition to democracy in the late 1980s and early 1990s was largely due to the determination and persistence of the group of opposition members of the Democratic Progressive Party, of which Chen was a leading member. His election to the presidency in 2000 was the culmination of Taiwan’s quest for democracy.
Observers in Taiwan and abroad agree that Chen may have made mistakes during his presidency, but that the charges against him, and the way the judicial process was carried out, reflect a heavy political bias. They point to the incommunicado detention during the first month after his November 11th arrest, the mysterious switching of judges at the end of December 2008.
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Jerome Cohen, who has been exemplary on the Chen case, spoke in guarded but nevertheless revealing ways
in the Taipei Times:
If former president Chen Shui-bian (陳水扁) appeals, US legal expert Jerome Cohen said yesterday, he would prefer to see Chen released, as it would be difficult for Chen to build a case while in detention.
“Every society has to protect human rights. This is a long process and a learning process for Taiwan. It is a very sad day, it is also a very important day,” he told reporters after visiting Legislative Speaker Wang Jin-pyng (王金平) at the legislature yesterday morning.
Cohen, who was a mentor to President Ma Ying-jeou (馬英九) when he studied at Harvard Law School, said the Chen case took a long time and that people could learn a lot from it.
Saying that the day was important for Taiwan’s judicial system, Cohen said he was anxious to know the result of the case and that he hoped the public would pay attention to issues relating to judiciary procedure and human rights.
All around the world there exist countries in which tense relations between two parties helped battle corruption in politics while protecting human rights, he said.
There are many problems within the judiciary and the power of custody needs to be used carefully because it is an instrument that can have huge effects, he said, adding that if Chen appeals he should be released to prepare his case.
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