Sunday 8 February 2009

Taiwan legal system on trial

Handling of former president Chen’s case exposes several flaws

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Taiwan legal system on trial

Handling of former president Chen’s case exposes several flaws

By Ho Ai Li
8 February 2009

In the Taipei District Court recently, Judge Tsai Shou-hsun was seen biting his lips and furrowing his brows throughout as he presided before a hearing against Chen Shui-bian.

The reason for his nerves was not so much that a former president was, for the first time, in the dock. It was that Taiwan’s legal system was on trial too.

Many are watching to see if Taiwan’s young democracy can demonstrate judicial independence in the trial of a former president facing charges of corruption, extortion and money laundering.

Chen and his wife, Wu Shu-chen, face charges which include accepting bribes of some US$9 million (S$13.5 million) for a land procurement deal and pocketing NT$104 million (S$4.6 million) in special presidential funds.

Already, domestic and foreign critics alike have expressed dismay over how the probe against Chen is being conducted. They claim the way investigators have gone about their work raises suspicions that the ruling Kuomintang (KMT) is out to get Chen, who belongs to the opposition Democratic Progressive Party.

Professor Jerome Cohen, who was President Ma Ying-jeou’s law tutor at Harvard University, even commented that ‘the increasingly circus-like atmosphere’ surrounding the trial was affecting Chen’s right to a fair hearing.

He cited specifically a skit mocking the former president at a dinner attended by the island’s legal fraternity, including Justice Minister Wang Ching-feng. One of the skit’s actors was a prosecutor involved in Chen’s case.

More serious is the continuing violation of the confidentiality of investigations, resulting in a trial by the media. Well before prosecutors pressed charges against Chen last December, the Taiwanese public had been apprised of every detail of the Chens’ alleged wrongdoings, with information about the probe leaked constantly to the media.

One day, it was about business associates who allegedly moved millions in cash into the Chens’ official residence in fruit cartons. Another day, it was about how Chen was suspected of carting millions of dollars out of Taiwan during diplomatic trips abroad.

Every few days, media pundits appeared on TV dishing out the latest tidbits about the case.

Newspapers like Apple Daily even ran polls asking readers if they believed Chen was guilty, an act that would have likely brought on contempt of court charges in many other jurisdictions.

Suspicions of political interference were further fuelled when the judge presiding over Chen’s case was replaced at the last minute by Judge Tsai.

While the first judge had allowed Chen to be released pending trial, Judge Tsai approved his detention.

Under Taiwanese law, a suspect can be detained before charges are pressed on grounds that he might flee or falsify testimonies with other suspects.

By then, even the pro-KMT United Daily News ran a column criticising the authorities for failing to explain their decision to change judges.

The practice of pre-trial detention has invited criticism for undermining the notion that a person is presumed innocent until proven guilty. It has also raised worries about possible abuse, such as using detention to extract a confession.

To its credit, the Taiwan government has tried to answer criticisms in an open manner.

This week, Cabinet spokesman Su Jun-pin explained in a written response the change in judges.

Initially, a panel of judges with expertise in finance was selected to hear the corruption and money-laundering charges against Chen.

But one of the judges suggested that Judge Tsai and two other judges who were already handling the special presidential funds case take over all the cases as this prevented duplication.

Earlier, Justice Minister Wang had also tried to quash suggestions that Chen’s prosecution was politically motivated.

She pointed out that the Special Investigation Task Force, which is conducting investigations against Chen, was created while he was president. Investigators handling the case report to Prosecutor-General Chen Tsung-ming, who was appointed by Chen in 2006.

In addition, investigations into the alleged misuse of special funds started in 2006, when Chen was still president. He could not be indicted then as he had legal immunity as president.

These facts should attest to ‘the impartiality of Taiwan’s prosecutorial and judicial system’, she wrote.

She was less convincing in easing concerns about leaks to the media, virtually admitting there was little the government could do to improve the situation.

The answers the KMT government have provided are unlikely to silence critics.

In fairness, Taiwan’s judicial system has come in for praise too. ‘Since the early 1990s, Taiwan, by and large, has developed neutrality of prosecutors and judges,’ said Prof Cohen in an interview with The Taipei Times.

Some say the very fact that a former president is on trial is evidence of the strength of Taiwan’s democracy and judiciary.

But Taiwan also has much to reflect upon.

The way Chen’s case is being handled has exposed several flaws, from the lack of transparency in judicial appointments to a disregard for the principle of confidentiality of investigations and the exploitative role played by some media.

Without doubt, Chen’s trial is a critical test for Taiwan’s judiciary and democracy. Even Chen acknowledges - with a tinge of sarcasm - in his new book, Taiwan’s Cross, that his prosecution was a milestone in the development of Taiwan’s legal system.

The trial offers the self-governing island a chance to strengthen its democracy. There is no better time to clean up corruption and strengthen the integrity of its judicial system.

Will Taiwan squander this opportunity? Right now, the signs are mixed.