The Legal Process: Not a Game of Russian Roulette

The Legal Process: Not a Game of Russian Roulette
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
March 5, 2009

The Taipei District Court under Judge Chou Chan-chun released Chen Shui-bian without bail. The very same court under Judge Tsai Shou-hsun continues to keep Chen Shui-bian under detention. Last week the High Court ruled that when Chou Chan-chun released Chen Shui-bian without bail he acted improperly, and overruled him. The very same court later ruled that when Tsai Shou-hsun detained Chen Shui-bian he acted impropertly, and overruled him. Is this "equal justice under the law," or a game of Russian roulette?

As matters stand, Tsai Shou-hsun and the Full Court turned down Chen Shui-bian's appeals to both the High Court and District Court, and extended the term of his custody two more months.

The prosecution has four cases against Chen Shui-bian, all formulated in plain view of the public. The merits of the cases are clear. The Special Investigation Unit's investigation was detailed. The relationship between the defendant and witnesses, their personality traits and interactions are well-known. Judges may disagree on certain details, but given the same legal precedents and ethical premises, they shouldn't arrive at completely opposite views on the case. Otherwise the same defendant would be safe and sound under Judge A, but have the book thrown at him by Judge B. This sort of justice can only be described as terrifying.

Last Friday when the High Court ruled in favor of Chen Shui-bian's release and overruled the District Court, it left the public deeply disturbed. The High Court ruled that Chen Shui-bian was not a flight risk, that he would not destroy evidence, and that he would not coordinate his testimony with others. It even questioned whether there was real evidence he committed a crime. It ruled that the nature of the State Affairs Fund had yet to be determined, therefore Chen could hardly be charged with fraud. It ruled that whether Chen Shui-bian and Lee Chieh-mu were involved in a criminal conspiracy was yet to be established. The High Court completely overturned the prosecution's Bill of Indictment. After all, without reasonable suspiction, how can one even indict a suspect? It completely usurped the presiding courts' jurisdiction. After all, without a uniform definition of the Discretionary Fund, how can one talk about fraud? What the High Court did was tantamount to handing Chen Shui-bian an acquittal!

Previously, on a similar case, the High Court ruled that the requirements for detention stipulate "a high probability of," not "definitely established" flight risk, destruction of evidence, or coordination of testimony. The High Court now says that it does not consider Chen Shui-bian a flight risk. that it does not think he will destroy evidence, that it does not think he will coordinate testimony with others. It even says it does not think Chen Shui-bian qualifies as a prime suspect. The High Court's ruling is tantamount to tearing up the entire Bill of Indictment. Chen Shui-bian and his attorneys have staged hunger strikes and resorted to filibuster tactics to attack the judiciary and obstruct justice. It is questioning Chen Shui-bian's detention insteading of wondering whether his prosecution and trial can proceed smoothly, all without bothering to study the case. In full view of the public, the High Court has essentially ruled that Chen Shui-bian is innocent and that there is no reason to detain him. Their behavior has left the nation incredulous.

That such judges inhabit the judiciary casts grave doubt on the administration of justice. Because the judiciary includes such judges, defendants such as Chen Shui-bian, who have access to immense financial resources, and who are adept at political manipulation, can frustrate the legal process. They can obstruct justice through endless appeals. If the first appeal fails, the second one may succeed. The High Court has 12 criminal divisions. If one of them is biased, Chen Shui-bian has a one in twelve chance. If two of them are biased, he has a one in six chance. If three of them are biased, he has a one in four chance. Endless appeals compel judges to recuse themselves. Eventually Chen Shui-bian's appeals will land him a courtroom presided over by one of the "King's Men." Chen's chances of far better than most people imagine. Fire a shotgun and a few pellets will invariably strike home. For the legal system to be just, every judge must be just. Because any one particular judge may well make a ruling that makes a travesty of justice.

Ah-Bian has vowed to counterattack Tsai Shou-hsun and the Full Court's continuation of his detention. Chen call in the international media. Chen Shui-bian's forte is political manipulation. But rest assured that the verdict in the Chen case will not be made by the international media. It will be made by Tsai Shou-hsun and the Full Court. Chen Shui-bian refuses to show repentance. He slanders the judiciary. He obstructs justice. He politicizes what is plainly a criminal trial. He polarizes society. But the more he does so, the more he compels Tsai Shou-hsun to include factors other than the Chen family's crimes. These factors are the defendant's attitude following his commission of the crime, the social costs the defendant exacted upon society. These determine whether the court should stiffen the sentence, and whether prosecutors should offer greater latitude during plea bargaining. Chen Shui-bian needs to understand that the legal system is able to punish him for his crimes, and that it is not to be toyed with.

Administering justice fairly is not easy. Last Friday the High Court Full Court didn't even bother to review the case before shredding the 155 page Bill of Indictment. If Chen is found guilty in the first instance, and his appeal lands him in the same High Court that handed down last Friday's ruling, then Chen Shui-bian will have for all intents and purposes been handed a "not guilty" verdict!

If a nation's legal process becomes a game of Russian Roulette, that nation is no longer a nation.

司法不能淪為俄羅斯輪盤賭
【聯合報╱社論】
2009.03.05 03:24 am

同樣一個台北地院，周占春無保開釋陳水扁，蔡守訓當庭羈押陳水扁；同樣一個高院，先前認為周占春開釋不當而發回更裁，後來卻認為蔡守訓羈押不當又發回更裁。這豈是一碗水端平的法院？簡直是生死賭命的俄羅斯輪盤賭！

目前的進度是：蔡守訓的合議庭駁回陳水扁對高院及地院兩件撤押聲請案，另裁定延長羈押兩個月。

照理說，在眾目睽睽下，相對而言，四大扁案的眉目相當清楚，特偵組的偵查動作也相當細緻，相關被告及證人的人格特質與互動關係亦相當明白；因而，在相同法律學養及倫理薰陶下的法官們，容或對扁案枝節可有見仁見智，卻不至於對全案實體出現全盤相左的見解才是。否則，同樣一碗水，在甲法官手中平安無事，但到了乙法官手中卻水潑碗砸，這種司法何其恐怖？

高等法院上周五認定陳水扁的撤押抗告成立，發回地院更裁，就予人這種恐怖感。高院的裁定不啻認定：陳水扁非但無逃亡之虞，亦無湮滅證據及串證之虞，連是否「犯罪嫌疑重大」亦有疑義；尤有甚者，裁定書更指稱：國務費的性質未定如何謂為「詐領」，而陳水扁與李界木是否有犯意聯絡亦「未備理由」。這已不是應否羈押陳水扁的辯論，而幾乎是從根本上全盤否定了檢方的起訴書（嫌疑有疑議，豈可起訴？），及全盤剝奪了繫屬法院的審判權（特別費性質見解不一，談何詐領？）。這已形同是一本宣判陳水扁無罪的判決書！

高院曾在相關裁定指出，羈押要件中所規定的「逃亡之虞」或「滅證、串證之虞」，乃是指「很有可能」，而非「確有此事」。如今高院的裁定非但不認為陳水扁有逃亡、滅證、串證「之虞」，甚至認為陳水扁根本不符「犯罪嫌疑重大」，不啻撕毀了整本起訴書；且亦對陳水扁及其律師以絕食及「費力把死拖」（Filibuster）種種手法攻擊司法、干擾審判視若無睹，竟在未調卷審酌下，即全盤質疑羈押陳水扁的理由，而不問追訴與審判能否順利進行。在社會視聽關注下，高院此番竟以幾乎認定陳水扁根本無罪的論述來反對羈押陳水扁，誠屬匪夷所思。

司法界出現此種法官，使司法的安定性及公信力深受傷害。既然在黑箱角落中有此種法官，則如陳水扁這般有財力延宕訴訟且擅長政治操作的被告，即可不斷以抗告挑戰司法，第一次不成，第二次就有機會；現今高院有十二個刑事庭，其中若有一庭偏頗，陳水扁就有十二分之一的機會，兩庭則六分之一，三庭則四分之一；不斷抗告，若再經同案不再理的迴避排除，陳水扁的抗告終會落到所謂「暗樁」的法庭上，其成功機率實較想像中大得多。霰彈打鳥，必有擊中之時。司法這碗水要在每一位法官手中都端得平才行，因為，任何一名法官都可能製造出水潑碗砸的驚悚場面！

面對蔡守訓合議庭的延押裁定，扁辦揚言將大舉反擊，並訴諸外國媒體。然而，政治操作雖是陳水扁的強項，但可斷言未來能對扁案作出判決的絕非國際媒體，而是蔡守訓的合議庭。陳水扁愈無認罪悔過的表現，愈是汙蔑司法、干擾審判，愈是將刑案政治化以撕裂社會；則蔡守訓宜應審酌的非僅是陳水扁一家的犯罪事實，且是彼等的犯後態度及所消耗的社會成本，凡此皆應成為當否加重其刑及能否認罪協商的考慮因素。要使陳水扁知道，司法可以懲罰其罪行，且司法本身亦不容狎玩戲弄。

司法這一碗水不易端得平。上周五高院的合議庭，甚至不曾調卷，即可逕將一本一百五十五頁的起訴書撕得粉碎。如果未來扁案一審有罪，上訴高院而送到同一庭上，則上周五的裁定書，不啻已可視為陳水扁的無罪判決書！

司法倘若真變成俄羅斯輪盤，那也就國將不國了。