Politics Must Not Interfere with Justice, Individual Cases Must Not Undermine the Rule of Law

Politics Must Not Interfere with Justice, Individual Cases Must Not Undermine the Rule of Law
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
July 1, 2009


Ah-Bian's corruption case continues to make its way through the system. Chen Shui-bian remains in the custody of the court. His children have been forbidden to leave the country pending charges of perjury. From prison, Chen Shui-bian announced that he had sent a letter to President Ma, asking him to ease the restrictions preventing Chen Hsing-yu from leaving the island. He said excessively tight restrictions might provoke the accused to commit suicide, and even taking her son with her.

No one knows how the Democratic Progressive Party will view President Chen Shui-bian's letter to Ma. But Chen Shui-bian's actions have subtly undercut the rule of law on Taiwan, in at least two ways. Whether a person should be prevented from leaving the country is an issue that must be decided with an even hand, in accordance with the law. Threatening suicide convinces no one. To claim that being prevented from leaving the island is so traumatic that she no longer wants to live and plans to commit suicide, along with her son, is hardly a normal reaction. It is hardly likely to gain public sympathy. On the contrary. It makes people wonder whether the Chen family is impatient to leave the country to manage its overseas accounts. Either that, or it is using the threat of suicide to bring pressure to bear on law enforcement officials. To put it bluntly, it comes across as nothing more than a political ploy intended to obstruct justice.

Politicians interfere with the administration of justice. They refuse to offer rational defenses in a court of law. They doggedly attempt to engage in political struggles by screaming "political persecution," eliciting stock responses from ruling and opposition party politicians. Such methods don't help their cases. They merely leave the impression they are attempting to use political passions to discredit the judicial process.

When Chen Shui-bian was president, he would order high-level prosecutors and investigators to jump, and they would ask how high. Today, it would seem, he still takes such an arrangement for granted. It was an arrangement he vehemently condemned during his years in the political opposition. But no sooner did he come to power, and he consciously perpetuated the same outrage. If that is not despicable enough, he is now in prison, yet he has the temerity to write President Ma, calling for the lifting of exit restrictions. How can people not suspect a political agenda? He wants his supporters to believe that the courts' rulings are still subject to the president's whims. Since those in power must not manipulate the justice system, how can President Ma possibly lift the exit restrictions on Chen's daughter? When Chen Shui-bian was president, he meddled in the administration of justice. How can one refuse to condemn this? Chen Shui-bian was telling his supporters the only political decision they need to make, is to support Chen Shui-bian. They need not wonder about right and wrong or the rule of law. He has used politics to undermine the rule of law on Taiwan.

Chen Shui-bian's political interference has undercut the rule of law on Taiwan, This is not news. Will the Democratic Progressive Party continue allowing itself to be taken hostage, and follow Chen blindly? The number of people willing to put their trust in Chen Shui-bian grows fewer and fewer. Therefore we should adopt a different perspective. Chen Shui-bian's attitude gives people the chills. The political motivation behind the DPP's expressions of solidarity can be debated. But among them are two issues that call for a cool head, and that warrant further investigation and systemic reform.

The first issue is the system of pre-trial detention. We must not undermine the presumption of innocence. Pre-trial detention must remain the exception and not the rule. This must be true for Chen Shui-bian. This must also be true for the ordinary citizen. Chen Shui-bian must not be considered special due to his political status. He must not be granted privileges denied others. Chen Shui-bian may be contemptible. But that does not mean the treatment he has received is necessarily questionable, or that most people ought to receive the same treatment. The main reason for pre-trial detention is to prevent flight and further criminal wrongdoing. That the crime is a felony is not grounds for detention. Detention to prevent coordination of testimony runs the risk of overly restricting the rights of the defendant. Detention to prevent coordination of testimony must be strictly monitored and not applied lightly. The court should consider the posting of bail and regular reporting as an alternative. A "strong suspicion of guilt" alone must never become cause for pre-trial detention. Until the law is amended, Chen Shui-bian must not be an exception accorded special treatment. On the other hand, the amending of the law must not be obstructed merely because Chen Shui-bian has established a bad precedent. If the DPP refrains from selective appeals on behalf of a specific individual, and instead advocates amending the law for the sake of human rights, it may gain greater political credibility.

The second issue is exit restrictions. Exit restrictions are actually way to restrict where the defendant lives. We do not intend to discuss the current exit restrictions against Chen Hsing-yu. But exit restrictions on her are not necessarily unwarranted. What we wish to discuss is who should be barred from leaving the country. The current practice is for prosecutors to determine who may not leave the country, and then declare that a defendant may not leave the country. This must remain an exception to the principle of presumption of innocence, and not the rule. Such restrictions constitute a threat to personal freedom and freedom of travel. The threat it poses to human rights is comparable to that posed by wiretaps. Today, wiretaps must first be approved by the court. But prosecutors still have the power to impose exit restrictions. Whether this accords with due process is debatable. This is true for Chen Hsing-yu, and it is true for the average person. The relevant laws should be reviewed, not for Chen Hsing-yu, but for everyone.

President Ma can of course submit a request to have prosecutors review an individual case. But why not use the controversy over detention and exit restrictions as an opportunity to reform the system? Why not use it as an opportunity to fulfill your campaign promise to improve human rights?

中時電子報 新聞
中國時報 　2009.07.01
社論－政治不能干預司法，個案也不能破壞法治
本報訊

扁案司法審判持續進行，陳水扁仍受到法院羈押，其子女亦因偽證等事由遭到限制出境。陳水扁在獄中聲言致函馬總統，要求對於陳幸妤遭到限制出境網開一面，理由是限制過度恐將引起當事人自己甚或攜子尋短。

對陳水扁致函馬總統的舉措，民進黨不知會如何看待，但陳水扁的做法對台灣的法治至少形成兩項無形的傷害。某人應否受到限制出境的待遇是司法應該公平對待的問題，但以尋死做為抗議限制出境的對策，並不具有說服力。說是遭到限制出境者將會痛不欲生到攜子尋短的地步，恐非正常反應，也難激發社會同情，反予人質疑是否急於出國理財或是以死要脅執法者的觀感，說穿了，只是對抗司法的政治手腕罷了。

政治人物涉及司法，不肯在法院中以理自辯，而只是一味以遭到「政治追殺」為名從事政治鬥爭，引發朝野政客諸多制式反應，對自己的案件不但沒有幫助，反予人利用政治情緒抹黑司法程序的印象。

陳水扁擔任總統期間，對於司法高層與檢調首長，呼喚隨心，任加指使，今日看來，顯是他心目中認為理所當然之事，這原是他昔年在野期間極力撻伐聲討的景象，後來明知故犯，已是令人不齒；現在繫獄期間，竟又致函總統要求解除出境限制，如何不令人質疑此中懷有政治算計，想要讓支持者繼續相信司法可受執政的總統擺布左右。然而執政者既然不該左右司法，馬總統又何能解除出境限制？陳水扁當年與司法的瓜葛糾纏，於今又豈能不受非議？所以誰都知道，陳水扁不過是在告訴支持者，只需要在政治上選擇支持陳水扁就是了，不必去問任何體制是非、法治道理。赤裸裸地使用政治手段踐踏法治體制的行徑，難道不是在傷害台灣法治？

陳水扁決定盲目地訴諸政治手段，傷害台灣的法治，早已不是新聞了，民進黨是否繼續遭他裹脅，盲從追隨，恐怕社會上願意寄以期待的人也愈來愈少了。饒是如此，我們也還要從另一個角度提出觀察。陳水扁的態度令人齒冷，民進黨的聲援政治動機可議，但是此中也確定有兩項議題，值得跳出情緒陷阱，純就制度改革的面向做持平的探討。

第一是審前羈押制度。在無罪推定原則無論如何不容破壞的前提之下，審前羈押一定只能是例外，不能是原則。不僅陳水扁案如此，一般升斗小民的案件尤然。固然不能因為陳水扁政治身分特殊，就給予一般人不能享受的特權，也不能因為陳水扁令人痛恨，就認為他所受到的待遇，必然沒有可資檢討之處，以致一般人也該同樣對待。審前羈押的主要理由應該是防止逃亡與制止虞犯。重罪羈押絕對不是理由，串證羈押也極易成為過度限制辯護權利的弊端，應該嚴格把關，不許輕用。交保以及定期報到，也恆該是法院思考逃亡羈押的優先替代選擇。「犯罪嫌疑甚重」本身絕對不能成為審前羈押的理由。陳水扁不應該在修法之前享受例外特權，但也不能因為有了陳水扁的惡例，就閉塞修法的努力。民進黨不去聲援個案，致力修法以造福通案人權，或許能贏得更多的政治公信力。

第二是限制出境的問題。限制出境其實是限制被告住居的一種方法，我們無意當下討論陳幸妤是否應該限制出境，也並不認為她受到限制的實質顧慮並不存在。所要討論的是，應該由誰來限制出境。目前的實務是由檢察官限制出境，然則限制被告出境，仍是無罪推定原則的例外，也構成人身自由、旅行自由的限制性強制處分，其威脅人權的程度，並不亞於監聽。監聽已經改為要經法院許可始得為之，檢察官仍然握有限制住居與限制出境的強制處分大權，正當程序上極有可議之處，陳幸妤如此，一般人也是如此。不是為了陳幸妤，為了一般人，相關的制度與程序立法，應該進行檢討。

馬總統可以將個案請求送檢座處理，何妨在羈押與限制出境的制度之上，進行改革，以兌現提升司法人權的競選政見？