Thursday, December 25, 2008

How Will the Justice System Eliminate Political Influence?

How Will the Justice System Eliminate Political Influence?
China Times editorial (Taipei, Taiwan, ROC)
A Translation
December 25, 2008

The Chen Shui-bian corruption and money-laundering case is under attack from both the Blue Camp and the Green Camp. Yesterday judge Chou Chan-chun publicly stated that he need not try the Chen case. He said that if Tsai Shou-hsiung, the judge in Wu Shu-chen's State Affairs Fund case, would be willing to take over before the trial begins, he would be happy to hand the four Chen family scandals over to him. The embarrassing thing is that Tsai Shou-hsiung, fearing he would be accused of political interference, has no intention of taking sole responsibility for the Chen family corruption cases. The first problem the Taipei District Court faces is, who is going to try the case?

Is Chou Chan-chun Blue or Green? After he released Ah-Bian for the second time, the Blue Camp has been wondering. A number of legislators discovered that among the 37 cases Chou Chan-chun tried in recent years, only two defendants were not detained. The other 35 defendants were. The legislators had to laugh. Chou has never been someone who places great importance on human rights when prosecuting suspects. Even more disturbingly, the Blue Camp learned that during the presidential election Chou Chan-chun canvassed votes for Chen Shui-bian, and privately confided that had Ma Ying-jeou wound up in his courtroom during the Discretionary Fund case, Chou "would undoubtedly have sentenced him (Ma) to 10 years!" In the eyes of the Blue Camp, and even the public, Chou Chan-chun's words and deeds have left the impression that his political loyalties might determine his legal judgments.

Of course, whether Chou Chan-chun's political affiliation would actually affect his court decisions must be verified. When prosecutor Liu Chen-wu openly campaigned for Ah-Bian, he was harshly criticized. Chou Chan-chun did not campaign openly. He merely canvassed votes in private. Other members of the judiciary have undoubtedly canvassed privately for Ma Ying-jeou. As long as they do not campaign openly, that does not constitute a breach of ethics for judges. Did he in fact say that he would have sentenced Ma to 10 years? Because we never heard his remark in context, it is hard to say whether he is Blue or Green. For example, he might merely be someone who demands impeccable integrity in public officials. If he sentenced Ma to 10 years, he might have sentenced Ah-Bian to an unexpectedly long term. The Blue Camp's criticism of him is a form of pressure. The Green Camp's cheering him on, isn't necessarily to his advantage. Judges perceived as ideologically biased, are likely to find their careers limited. Even if he believes himself just, any verdict he renders will be in doubt. This is without question a major blow to the credibility of the justice system.

Chou Chan-chun has yet to actually preside over Ah-Bian's case. People from all walks of life have speculated about his words and deeds, and attempted to read his thoughts. This may not be fair. But he is the trial judge in a corruption case involving a former head of state, one that has attracted the attention of the nation, and even the world. It was inevitable that he would be placed under a microscope and subject to detailed scrutiny. Such criticisms of Chou Chan-chun have precedents. Public Prosecutor Chang Hsi-huai investigated and prosecuted Wu Shu-chen for the State Affairs Fund case. He was harassed by the Green Camp wherever he went. Public officials, from the central to local government level, as well as Pan Green pressure groups and TV talk show hosts mobilized, en masse. He was even accused of "treason" for participating in cross-Strait professional exchanges. He was harassed so relentlessly he lost his composure and broke down in tears. Despite the absence of court appearances, Chou Chan-chun is in a much better situation.

The sums of money involved in the Chen family corruption scandal are mind-boggling. The trail the money left is as tangled as a spider web. The case involves every member of the First Family. The Green Camp is adept at manipulating the emotions of their followers, as a way of applying political pressure. Politics will inevitably interfere with court cases. Anyone who might threaten the Chen family, will be subjected to all manner of harassment. Anyone who might be helpful to the Chen family, will win their applause.

The Blue Camp has circled the Chen family scandal for three or four years. It has not mobilized its forces to the same extent as the Green Camp, but it feels just as strongly about such matters. During the Special Investigation Unit's investigation of the Chen family scandal, Blue Camp legislators and TV talk show hosts questioned the Special Investigation Unit's excessive deference toward Ah-Bian and other concerned parties. When the Special Investigation Unit began its first wave of prosecutions, they suspected the Special Investigation Unit of sloppiness, and wondered whether it was deliberately leaving defendants loopholes through which they could escape. They have never trusted Chou Chan-chun.

Both the Blue Camp and the Green Camp have critiqued the judicial system's handling of these cases, based on their own political stances. They have applied pressure, hoping to influence the outcome of the cases. These are all abberations from the norm. But they are also expressions of free speech, which a democratic society cannot prohibit. When independent prosecutor Patrick Fitzgerald investigated U.S. President Bill Clinton's Monicagate and Whitewater cases, his impartiality was questioned. Many dismissed him as a "Republican." Fitzgerald was indeed a Republican. But if a Democratic president is involved in a scandal or corruption, who says a Republican cannot investigate him?

For a judge, impartiality and independence are fundamental. Is Chou Chan-chun a reformist, or a hatchetman? People will draw their own conclusions. From the very beginning, the Chen corruption case has been dogged by political interference. Prosecutors and judges have hobnobbed with politicians. The judicial system needs to do some serious soul-searching, and figure out how to eliminate political influence from the trial process.

中國時報  2008.12.25

扁 案在藍綠夾擊下,周占春法官日昨公開表示,他不是非審扁案不可,如果前審吳淑珍國務機要費案的法官蔡守訓願意,他很樂意將扁家四大弊案,全部併案移送蔡守 訓。尷尬的是,或許是畏懼政治干擾,連蔡守訓都無意承攬全部的扁家弊案。扁案偵結,台北地方法院碰到的第一個難題竟是:到底由誰承審?

周 占春到底是藍是綠?從他二度釋扁以來,一直備受藍營質疑,立委找出周占春近年承審的卅七個案件,只有兩件未押,其他卅五件都裁定羈押,譏笑周根本不是重視 司法人權的人;更麻煩的是,藍營還找得出來周占春在總統大選時為陳水扁拉票,馬英九特別費案在司法審理程序時周竟私下表示,此案若落到他手中,「一定判他 (馬)十年!」周占春的言行在藍營,甚至在部分民眾眼中,已形成立場可能左右判決之印象。

不過,周占春「私下」的政治言行,是否真正影響 他專業的司法判決,還是要實證檢驗,比方說,當年檢察官劉承武公然為扁站台輔選,就被嚴重質疑,但周並未公開站台,只是私下拉票,相信司法界同樣有私下為 馬拉票者,只要不是公開站台,就無違司法官的專業規範!至於他到底有沒有說過要判馬十年之事?因為沒聽到周的前言後語,也很難以此定論其藍綠,比方說,他 可能是對清廉非常堅持之人,對馬都要判十年,若以此標準問他對扁案可能判幾年,他的答案也可能出乎意外的重。藍營批評他,對周是壓力;綠營褒揚他,對他也 未必有利。政治立場被「鎖定」的法官,除非有相當定力,其司法專業空間難免就被限縮,即使他自信公正,但任何判決結果都會遭懷疑,這對司法的威信無疑是最 大打擊。

對周占春而言,他還未開始真正審理扁案,各界即以他過去言行或交往對象,揣測其心證,未盡公平;但是,身為舉國、甚至世界矚目的 元首弊案承審法官,難免遭到質疑與非議,周占春被批評,還有過去的言行為憑;對比當年偵辦吳淑珍國務機要費案的公訴檢察官張熙懷,遭到綠營鋪天蓋地般圍 剿,從中央到地方公職,從各類綠營社團到電視名嘴,全面發動,連他因為兩岸司法交流赴大陸,都被批評為「叛國」,終至落淚,情緒失控,甚至缺席法庭的情 境,周占春的處境其實好多了。


綠 營如此,藍營與扁家弊案周旋三、四年,儘管動員能量沒有綠營強,但愛之欲其生、恨之欲其死,幾無二致。特偵組偵辦扁家弊案過程中,藍營部分立委到電視名 嘴,一而再、再而三質疑特偵組辦案對扁過分禮遇,對關係人過分禮遇,待特偵組第一波偵結起訴,又懷疑特偵組急乎乎起訴,是否故意留下漏洞?乃至對周占春的 審理,始終不信任。

不論藍的、綠的,對司法偵辦審理中的案件,以自己所愛的立場評論、施壓,甚至希望藉此影響案件進行的方向,這些都是不 正常的現象,但卻都是民主社會沒辦法禁絕的言論自由。就像美國獨立檢察官費茲傑羅,調查美國總統柯林頓所涉及的緋聞案、白水案時,同樣遭到輿論全面性的質 疑,直指他根本就是「共和黨」,費茲傑羅確實是共和黨,但若民主黨的總統涉入醜聞或弊案,誰曰不宜調查?


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