Wednesday, July 1, 2009

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









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