Neither a President, nor a Lawyer

Neither a President, nor a Lawyer
China Times editorial
translated by Bevin Chu
June 20, 2007

Comment: Albert Einstein defined insanity as "doing the same thing over and over again and expecting different results."

By Einstein's definition, virtually everyone on Taiwan is insane, because virtually everyone on Taiwan keeps doing the same thing over and over again while expecting different results.

Virtually everyone on Taiwan expects democracy to uphold human rights and individual liberty, even though every time they have dutifully implemented democracy and played by its rules, their human rights and individual liberty have been ground into the dust.

They keep going to the polls and electing "public servants" who once elected, betray every campaign promise they ever made, and what's worse, turn around and subjugate the very same voters, their nominal "masters," who put them in office in the first place.

Virtually everyone on Taiwan believes in "democracy." At least they pay lip service to it.

Every Pan Blue political declaration begins with "In order to defend the Republic of China's s democracy... " Every Pan Green political declaration begins with "In order to defend Taiwan's democracy... "

Never mind that the Republic of China was supposed to be a republic, not a democracy.

The following China Times editorial laments:

We originally hoped that our lawyer president would exercise moral discretion, control his power lust, and accord the minimum respect due the judiciary. But even our modest expectation that the rule of law would prevail was not to be. Our lawyer president does not handle the affairs of state in a manner befitting a president. He does not even handle them in a manner befitting an ordinary lawyer. Perhaps that is because he has lost respect for the rule of law altogether.

You hoped? You hoped what? That democracy would work the way it is supposed to work in civics texts, and not the way it actually works in real life?

Einstein defined insanity as "doing the same thing over and over again and expecting different results."

Sanity, by logical extension, is "doing something different in order to achieve a different result."

Unless the Chinese people on Taiwan are actually happy with the same result each time, unless they are actually content to remain inmates in an asylum, mechanically going through the same motions over and over again, it is time they considered doing something different in order to achieve a different result.

It is time they reclaimed their human rights and individual liberty. It is time they reclaimed their sanity.

See: Democracy, the Worst Form of Government ever Tried, Part III

Neither a President, nor a Lawyer
China Times editorial
translated by Bevin Chu
June 20, 2007

The Kaohsiung court has ruled that Kaohsiung Mayor Chen Chu's election was invalid. President Chen Shui-bian immediately began holding forth, excoriating the decision as "extraordinary," and asking rhetorically, "What kind of world is this?" He went so far as to declare that Chen Chu ought to remain in office until her term is up. If the Kaohsiung court can defy traditional political taboos and arrive at such an unexpectedly impartial decision, then President Chen's response is even more incredible. The sight of a head of state throwing a high decibel temper tantrum over a legal decision unfavorable to the ruling party is unprecedented on Taiwan.

President Chen was certainly not shy about discussing his academic record as a legal scholar, or his professional qualifications as an attorney at law. His diatribe made people wonder who was talking. A president? Or a lawyer? The logic is simple. The president may be the head of state, but the courts also represent the nation. It is their responsibility to adjudicate. To treat the courts as an enemy of the people is clearly inappropriate. The president knew this, but did it anyway. Actually, even a defense attorney must accept a court's unfavorable ruling. He must abide by a code of legal ethics. He must not stoop to underhanded methods such as attacking the judiciary through the media, throwing down the gauntlet, and displaying contempt for another branch of government.

If this behavior reminds one of the past behavior of Nazis, it is not without justification. President Chen's recent conduct regarding the judiciary has created an unsettling political atmosphere. Nominating the president and vice-president of the Judicial Yuan is the president's duty. It should have been completed long ago. Yet President Chen acts as if he has the world on a string, and is sitting on a rainbow, insisting all the while that, god forbid he should leave the impression he's attempting to unduly influence the judiciary. In fact, his disclaimers remind one of Nixon's "I am not a crook!" or Clinton's "I did not have sex with that woman!"

When the judiciary ruled that the president enjoyed a constitutional right to keep national secrets, Chen couldn't thank the judiciary enough. But when the Kaohsiung court rendered an unfavorable decision on the Kaohsiung mayoral election, Chen's gratitude instantly turned to raging hostility and bitter rebukes. The president's feelings of gratitude or hostility, his judgments regarding good or evil, hinge entirely on selfish personal and partisan advantage. Obey me and live. Defy me and perish. He doesn't even attempt to conceal his self-centered attitude. Clearly all that matters is electoral victories and political advantage. One would never know from Chen's behavior that respect for the judiciary and adherence to the rule of law are the duty of a head of state.

Are such public rebukes against the judiciary to be construed as demands that the courts overturn their original rulings on the Chen Chu or even Wu Shu-chen cases on appeal, based on whatever pleases His Imperial Majesty? The First Family will protect itself by hijacking the Grand Justices' legal rulings. Skeptics who don't understand the purpose of the loopholes in Judicial Yuan Interpretation No. 627 will just have to wait and see. Ex-mayor Chen Chu's legal team lost the first round in the Kaohsiung case. But they have President Chen's support. How will they use his support in their legal appeal? The show has only just begun. Whither justice? Justice, apparently, is between a rock and a hard place.

On the one hand, the Grand Justices' interpretation of the constitution declares that presidential immunity is not a constitutional principle, but merely a courtesy extended to the head of state. At the same time, the Grand Justices spared no ink making clear the judiciary's reverential attitude toward the president. The Grand Justices are the highest representatives of the judiciary. Their deference toward President Chen is unparalleled. But how has the president repaid them? He has used language utterly inappropriate for a head of state to castigate a court decision that met with his displeasure. This reveals just how far out of balance the division of powers is on Taiwan. President Chen is known for holding grudges. Therefore the next thing to watch for is not just whom the president nominates for president and vice president of the Judicial Yuan, but also for the high courts and local courts in Taipei, Tainan, and Kaohsiung. In politically sensitive court cases, judges must spread their wings, and through their decisions increase judicial independence. Judges whose duty is the independent exercise of judicial power, after all, cannot lower themselves to the same level as the president.

Those who would rush to President Chen's defense, please do not invoke his "freedom of speech." Chen as either a president or an attorney, no less than any person on Taiwan,
enjoys complete freedom of speech. No one can investigate or punish President Chen for making indiscreet remarks attacking the judiciary that are beneath the dignity of his office. Everyone has the legal right to mouth obscenities. Mouthing obscenities is not punishable by law. Whether a person chooses to mouth obscenities may be a matter of freedom of speech, but it is also a matter of self discipline and moral character.

The president as the head of state enjoys legal and political privileges that far exceed any legal constraints placed upon him. The judiciary, through its constitutional interpretations and concrete actions, effectively informed the people that President Chen Shui-bian is not subject to the rule of law and the principle of equality before the law. He is the only person on Taiwan who can abuse his presidential authority to openly demand that the Grand Justices order judges to stop the prosecution of his wife. He is the only person on Taiwan who can order the Grand Justices to set aside the backlog of cases before them, and take the time out to respond in painstaking detail to all his concerns, creating all sorts of procedural privileges unforseen in the constitution or the law. Even though it means they have clipped their own wings, the 13 Grand Justices have acted in unison and offered a unanimous opinion. If any of them held a dissenting opinion, he was not willing to express it. Since the judiciary is willing to show the president so much deference and grant him so much latitude, it is hardly about to turn around and infringe the president's freedom of speech.

We originally hoped that our lawyer president would exercise moral discretion, control his power lust, and accord the minimum respect due the judiciary. But even our modest expectation that the rule of law would prevail was not to be. Our lawyer president does not handle the affairs of state in a manner befitting a president. He does not even handle them in a manner befitting an ordinary lawyer. Perhaps that is because he has lost respect for the rule of law altogether.

Original Chinese below:

中時電子報
中國時報 　2007.06.20
總統律師行事 不似總統也不如律師
中時社論

高 雄法院判決高雄市長陳菊當選無效，陳水扁總統隨即大放厥辭，嚴厲批評判決離譜，質問「這是什麼世界？」矢言陳菊一定會做滿市長任期。如果說，高雄法院打破 傳統政治禁忌的判決出人意料，那麼陳總統的反應就更令人不敢置信了。國家元首高分貝叱罵不利執政黨的司法判決，在台灣，真是前所未見的政治奇觀。

陳 總統並不諱言自己的學法背景與律師出身，他的發言已使旁人質疑，究竟這是一位總統還是一位律師在說話？道理很簡單，總統身為國家元首，對於同樣是代表國家 審判的法院不假辭色，視如寇讎，明明有失身分，總統怎會明知故犯？其實，即便是代理訴訟的律師，接獲法院的不利判決，遵照律師倫理，也不該出此下策，在媒 體之前吃定司法不語，公然叫陣，目中無人。

論者讜言此種態度足可聯想納粹遺風，對照陳總統近日對於司法行事詭譎，引發了詭異的政治氣氛， 不為無因。總統提名司法院正副院長的作業，早該完成，陳總統卻好整以暇，按兵不動，還巧言說是不要造成影響司法解釋的誤會，其實恰似此地無銀地我口說我 心，忙不迭引出了總統享有國家機密特權的憲法解釋，也贏得陳總統第一時間表示感謝；不旋踵則對高雄的司法判決變臉怒斥，總統前恭後倨，全視是否利己利黨而 定其好惡。順我昌、逆我亡的風格，對司法竟也毫不遮掩，顯現其心中只有選舉勝負與政治利害，何曾知道尊重司法、恪守法治，乃是國家元首的基本政治倫理責 任？

如此明目張膽地教訓司法，難道是要法院在接下來審判陳菊上訴乃至吳淑珍刑案時，善體天威，對其喜惡，推翻原有判決？而第一家庭將會如 何挾大法官解釋以自重，不懂釋字第六二七號解釋有何玄機者固不妨拭目以待，在高雄有了阿扁加持過的敗訴團隊將會如何挾總統以令上訴法院，自也是未演先轟動 政治戲碼。而司法呢？司法似乎窘態畢露。

大法官在憲法解釋中，一面訴說總統刑事豁免特權不是憲法原理，只是禮遇元首的憲法政策；一面卻毫 不吝惜筆墨明白展現司法對於總統的尊崇。最足以代表司法高度的大法官，對於陳總統的尊重可謂無以復加，而司法系統獲得的回報，卻是總統用絕難匹配元首應有 高度的語言刻薄令其不悅的司法判決，這是多麼高下失衡的憲政畫面？如謂此為陳總統恩怨分明、有仇必報的政治性格使然，那麼接著應該觀察的，就不只是總統如 何提名司法院正副院長，更要看從南北高等法院到地方法院，在具有政治關連性的司法審判中，能不能勇於振翼展翅，在更為提昇的司法高度上用判決顯示，職司獨 立審判的法官，畢竟不能和總統一般見識。

想為陳總統說話的朋友，請不要用總統的言論自由來為總統緩頰。陳總統或是陳律師，都享有完全的言 論自由，不比台灣的任何人少；無人能對陳總統攻擊司法的失言失格，發動法律上的追訴或處罰，就像每個人也許都有用髒話當做口頭禪的自由，不因說髒話而受到 法律處罰，然而一個人要不要說髒話，甚至選擇不說髒話，不但也是他的言論選擇自由，而且也繫於每個人的自律意識與品格認知。

總統作為國家 元首，享受的法律或政治特權，其實遠大過他所受到的法律限制。到今天為止，司法已經用憲法解釋、用實際行動告訴國人，陳水扁總統是「法治國家法律之前人人 平等原則之例外」，他是台灣僅有的一個人，可以運用總統的身分與權力，大刺刺地要求大法官命令法官停止審判其夫人，也可以讓大法官們放下手邊絕大多數的案 件，密集而專心地為他做出解釋，創造出憲法及法律上均無法預見的種種程序特權，即使因此折損了自身的司法羽毛亦在所不惜；十三位大法官還行動一致地連一篇 協同意見、不同意見也不肯提出。司法既然肯給予總統如此寬闊的政治尊崇，大概不致於反過來迫害總統的言論自由。

我們原本期望，總統律師能夠本於品格意識，自我抑制權力的衝動，對於司法給予最起碼的尊重。然而，如此一廂情願的卑微法治要求竟然也渺不可得。總統律師行事不似總統，甚至連一般律師也不如，或許是因為他已經完全失去了法治品格。