Chen Shui-bian's Veiled Threat against the Judiciary

Chen Shui-bian's Veiled Threat against the Judiciary
China Times editorial
translated by Bevin Chu
August 1, 2007

"Transitional Justice" has been a hot topic on Taiwan lately. Its main theme is how to confront, process, and correct the negative impact of authoritarianism on a political system or culture. This requires close attention by men of vision, who must not assume that authoritarianism will automatically vanish with regime change, who must not assume that authoritarianism is a defect unique to a specific political party, rather than the abuse of power by any political authority. The implementation of Transitional Justice is often difficult, because those implementing Transitional Justice are often guilty of the same abuses as those they just replaced. They may fly the banner of democratic reform, but they have inherited the same habits, the same manners, and the same propensity to abuse power as those they just replaced. This is what makes the implementation of Transitional Justice so difficult.

President Chen received a foreign visitor the other day. Citing "Transitional Justice" as his reason, he spoke of the problem of judges and public prosecutors who were unfit for office. He cited the example of East Germany, which eliminated over five-tenths of its judges and public prosecutors. By contrast, Taiwan has not undergone the same process. He said it was difficult to avoid intervention by judges, public prosecutors, and criminal investigators, who motivated by political factors or election considerations, engaged in attempts to influence or even manipulate the results of ROC presidential elections. President Chen's words provoked an immediate reaction from the Judicial Yuan, the Prosecutors' Reform Association, and the private sector Judicial Reform Foundation. The consensus was that his remarks were improper. Examination, prosecutorial, and investigative bodies all affirmed that judicial personnel should not and would not abuse their authority to intervene in the presidential election. Some appealed to President Chen to exercise caution, to avoid misspeaking, and to avoid indiscriminately tarring everyone with the same broad brush.

Taken at face value, Chen's speech was a bold call for justice. Taken at actual value, it was a chilling threat against an independent judiciary. According to his logic, the government needs to engage in the wholesale elimination of judges and public prosecutors. The criterion for elimination would be which judges and public prosecutors are having an undesired impact on the presidential election. Those judges and prosecutors currently prosecuting the two presidential candidates, who have the power to influence the candidates' election prospects, are targets for elimination. Who has the authority to decide which judges and prosecutors are "unfit for office," therefore must be eliminated? Who else but Chen? Who is Chen suggesting as potential targets for elimination? Who else but the judges and prosecutors handling the Wu Shu-chen case, the Ma Ying-jeou case, the Frank Hsieh case, and the Chen Chu case? What is Chen telling them, if not that they will be eliminated under the pretext of implementing Transitional Justice in the event their prosecution of these cases or the outcome of these trials meet with his displeasure?

President Chen's improper remarks illustrate a problem with Transitional Justice that cannot be ignored, namely that those implementing Transitional Justice are often guilty of the same authoritarian abuses of power as those they just replaced.

Politically speaking, President Chen Shui-bian may be a lame duck. But because the ruling DPP considers the office of the president an indispensable component of its power, during the upcoming presidential election Chen will remain an influential player. On top of which, President Chen is a key figure, even an indirect litigant, in the ongoing State Affairs Confidential Expenses Case, the Wu Shu-chen case, the Ma Ying-jeou case, the Frank Hsieh case, and the Chen Chu case. Citing Transitional Justice as a pretext to hurl veiled accusations against the judiciary constitutes a serious conflict of interest, from which Chen should have recused himself. But when a head of state openly casts doubt on the impartiality of his own nation's judiciary in front of foreign dignitaries, is that merely a breach of etiquette? Or is it something far more serious -- the abuse of the power of his office in an attempt to influence or even intimidate the judiciary? Isn't a ruling regime's threat to conduct a political purge the nation's judiciary, depending upon whether pending court cases favor the ruling regime in the upcoming presidential election, precisely what "Transitional Justice" is all about?

Prior to regime change, the public had little faith in the judiciary. That lack of faith reflected weakness in the nation's political institutions. Years ago the ruling party boasted that "We own the courts." Those words probably still ring in many peoples' ears. It was the very reason some suspected the judiciary of containing "residual scum" from a bygone era. Prior to regime change, when the ruling party had the temerity to boast that "Our party owns the courts," the problem was not that a specific political party dared to boast that "Our party owns the courts." The problem was that the ruling party dared to boast that "Our party owns the courts." The name of the party was not important. What was important was that it was in power. Only the ruling party has the political wherewithal to own the courts, not the opposition party. That is why what matters is who is in power, not the name of the party in power.

If Transitional Justice is to avoid replicating past authoritarian manipulations of the judiciary, it must address two problems. The first problem is the new regime. The new regime must not be permitted to interfere with the judicial process the way the old regime did. The new regime might not have the chutzpah to openly manipulate the courts. But if the new regime nurses a morbid fear that "If we don't own the courts, then the courts will own us," and cites that as a justification for a political war against the courts, what difference is there between it and the old regime? The other problem is new judicial personnel. New judicial personnel may be unqualified to be part of a modern judicial system. But which judicial personnel should be eliminated must not be decided by the ruling regime, on the basis of partisan political advantage, on the basis of "Those who obey me, prosper. Those who defy me, perish." Such decisions must be made in accordance with human rights safeguards, with due process as a measuring rod. Political interests must make room for social dialogue, and allow deliberative democracy to inspire spontaneous reform from within the judiciary.

If the ruling regime waves the banner of Transitional Justice, while drawing no distinctions between black and white or good and evil; If it accuses the judiciary of being filled with "residual scum" in order to intimidate the judiciary and make electoral gains from specific court decisions, that constitutes a betrayal of Transitional Justice. That constitutes the trampling of judicial independence by yet another abusive political authority.

中時電子報
中國時報 　2007.08.01
陳總統議論司法是惡劣的權力示威
中時社論

「轉型正義」，是台灣最近常見的討論話題，所探究的主軸是如何面對、處理或矯正過去威權體制在政治社會乃至文化層面的遺緒。這確實需要有識之士嚴肅以對；尤其應該注意避免一項基本的思考盲點，那就是假設威權體制業已隨著政黨輪替而終結，誤認「威權體制」是與特定的政黨而非政治權力的濫用相連結。因為，轉型正義所要處理的一個重大難題，正是在正義轉型期間掌握政權的個人或政治勢力，不僅整套複製既有威權政治文化的遺緒，更在民主業已轉型的表象之下，繼承了濫用權力的習性與風格，使得轉型正義難以實現。

陳總統日前接見外賓，以「轉型正義」為由，說到如何處理不適任的法官與檢察官的問題，以東德淘汰了五成以上的法官與檢察官為例，對照台灣未做相同的處理，以為台灣很難避免法官、檢察官及調查員因政治因素或選舉考量，而介入、影響甚至企圖左右各黨總統候選人未來的競選活動。陳總統的話語，立即引起司法院、檢改會、民間司改會以及司法界人士的反應，普遍皆認為發言不當。審、檢、調機關各自重申，司法人員不該也不會動用手中的權力干預總統大選；有人呼籲陳總統慎言，不要模糊其詞，一竿子打翻一船人。

依我們看來，陳總統的不當發言，恰巧出現了「轉型正義」裡不容忽略的思考盲點：即民主轉型期中的掌權者，也依舊可能延續威權政治中的濫權遺緒。

陳總統的發言，表面上大義凜然，骨子裡卻令人不寒而慄。依照其發言邏輯，台灣似也該淘汰不適任的法官、檢察官，而意在言外的淘汰指標，似乎就是要看哪些法官、檢察官介入影響總統選舉？接下來，正在處理或審判總統大選候選人相關案件，還有足以影響選情、動見政治觀瞻等重大案件的法官、檢察官們，豈不就是淘汰指標所要觀察的對象？問題是，誰有權力運用特定的淘汰指標指認並發動淘汰「不適任」的法官、檢察官？陳總統所暗示的淘汰指標，難道不是在以吳淑珍案、馬英九案、謝長廷案、陳菊選舉案中的法官或檢察官為對象，告訴他們，如果處理或審判的結果不令當權者感到滿意，他們就會是轉型正義旗幟下遭到淘汰的法官與檢察官？

陳水扁總統雖已處於政治跛腳的位置，但是由於執政黨極度看重總統職位的分量，他在未來的總統大選中，顯然仍是舉足輕重的政治影武者。加上尚屬現在進行式的國務機要費刑事案件，陳總統在吳淑珍案、馬英九案、謝長廷案、陳菊案……中，都是不折不扣的政治利害關係人，甚或間接當事人，利用「轉型正義」的題目，從事含沙射影的發言，已經不只是應迴避而不迴避的利害衝突問題，也不能只問國家元首在接見外賓時是否欠缺了對於司法應有的尊重，而是涉及是否利用其身分及權勢地位干預甚至恫嚇司法了。一位執政者，利用總統選舉的案件關連性，對於司法人員提出淘汰說，有沒有威脅司法獨立的顧慮，不也正是轉型正義論述所該關心的話題？

政黨輪替之前的威權時代，司法的信用不彰，原是民主體質孱弱的社會現象指標。當年執政黨自詡是法院的經營者，許多人可能依舊言猶在耳，也就因此以為司法之中尚有昔日的威權餘孽存在。但是，政黨敢於號稱「法院是我黨所開」，原因不在它政黨的名號，而是在它執政的位置。有政治本錢經營法院的只能是執政黨，不會是在野黨，所以重點是誰在執政，不是那個政黨。

轉型正義要避免威權政治再度扭曲司法，必須針對兩種對象，一種是新的執政者，確保他們不會繼續伸手干預司法的前朝文化，他們也許不再明目張膽地經營法院，但是新的執政者如果本著深怕「法院不是本黨的地盤」的心態，以法院不利執政者的判決作為政治上聲討法院的根據，其實也與戕害司法的威權文化餘孽，相去無幾。另一種對象則是司法體系之中與現代司法體質格格不入的不適任人員。但是，如何區別甚或淘汰不適任司法人員，不該由執政者決定，也不該是直觀式的使用政黨的標籤進行順昌逆亡的聲討，而必須要以人權保障的司法正義實現程度，做為觀察標尺，由政治勢力讓出適當的空間，透過審議式民主的社會對話，引發司法體系自覺自發性的體質改良。

執政者若是打著轉型正義的旗號，表面上不分青紅皂白，對司法做出泛餘孽指責，骨子裡卻企圖形成司法內部的寒蟬效應，在司法審判具體案件的結果上獲取選舉政治利益，那將是轉型正義的悖論與背反，不過是另一次踐踏司法獨立的惡劣權力示威舉動罷了！