Detention Law Reform vs. Solidarity with Ah-Bian

Detention Law Reform vs. Solidarity with Ah-Bian
China Times editorial (Taipei, Taiwan, ROC)
A Translation
September 29, 2009

The High Court continues to detain former President Chen Shui-bian. It has cited three reasons: He is a flight risk, he would destroy evidence, and he has been convicted of a felony. Chen Shui-bian has filed suit against U.S. President Barack Obama, demanding that the United States Military Government in Taiwan intervene and demand his release. He is arguing that during his administration he frequently acted on orders from the American Institute in Taiwan, therefore he should be considered an official of the United States government.
When the public learned of this development, they were incredulous that Chen Shui-bian, a former head of state, would go so far to free himself from custody. They had trouble believing he would take such an unwise action and trample the dignity of the Republic of China, a sovereign and independent nation. They could not understand the logic behind his claim that a US military court should exercise its jurisdiction and demand his release. Ah-Bian's overseas legal move merely makes the High Court's decision to keep him in custody for another three months, for fear that he might be a flight risk, seem more reasonable than ever.

To be fair, regardless of how ridiculous Chen's idea might be, the court should not detain him merely because he is disrespectful. Is he being detained because he has been found guilty of a felony and handed a life sentence? Is continued detention under the Code of Criminal Procedures consistent with the constitution? There is room for discussion. This has universal relevance, and is not something relevant only to Ah-Bian. The pre-trial detention system is overdue for comprehensive review. Is Chen being detained because he has hidden large sums of money overseas and may destroy evidence? Defendants have no legal obligation to provide evidence of their own guilt. Therefore this ruling is questionable. Concerns that Ah-Bian has squirreled large sums of money overseas, and therefore may be a flight risk, are consistent with common sense. Now Ah-Bian is appealing to Uncle Sam for help. Once he is released, might he seek political asylum at the American Institute in Taipei, and make it difficult to continue legal proceedings? That is actually a easier scenario for the court to imagine. If Chen Shui-bian wants to avail himself of another nation's judicial processes in order to evade prosecution, that is his right. But if he expects America to rescue him, he is indulging in wishful thinking, and will only make it more difficult for the courts on Taiwan to believe he is not a flight risk. He is merely shooting himself in the foot.

His politically foolish and morally unscrupulous moves will only make it more difficult for him to win public sympathy. The Democratic Progressive Party's response to Ah-Bian's folly will also test its political wisdom. Not long ago, DPP Chairman Tsai Ing-wen demanded a meeting with Lai Ying-chao, President of the Judicial Yuan. He turned her down. She then demanded his resignation. This was another breach of protocol that ought to be examined.

When the Chairman of the DPP demanded a meeting with the President of the Judicial Yuan, she boasted that she represented millions of people. She said "I am not just any passerby." She said her request should not be rejected. But what was the purpose of her demand for a meeting? The public knows only too well that it was to demand an immediate Grand Justice ruling on the constitutionality of Chou Chan-chun and Tsai Shou-hsung's review of the Chen corruption case. The Grand Justice's ruling would have a direct bearing on whether the local court was legal, and whether its ruling in the Chen corruption case was valid. The largest opposition party banged on the door of the Judicial Yuan, demanding a hearing. It demanded a constitutional interpretation on an ongoing case pertaining to Chen Shui-bian. The DPP claim that it was not interfering with the administration of justice convinces no one. In fact, it is hardly the only case that would have be made vulnerable to judicial interference.

The President of the Judicial Yuan politely refused to meet with the Chairman of the DPP, as was his right. Society expects judicial independence. President Lai's refusal to meet with Chairman Tsai, on the grounds of judicial independence, was proper and wise. The Chairman of the DPP is the one who deserves to be criticized for lacking restraint and exceeding her brief.

The Chairman of the Democratic Progressive Party President is not just any passerby. That is precisely why the Judicial Yuan must avoid the perception that political parties have hijacked the justice system. Otherwise one is merely repeating the same mistake made by the Kuomintang in the past, when it "owned the courts." Otherwise the DPP is merely calling the KMT black. DPP leaders have explicitly declared that their preeminent concern is the defense of human rights, that they are not merely trying to cover for Chen Shui-bian. The public is having trouble believing them, because recently every one of the DPP's human rights demands has revolved around the Chen corruption case. The DPP is working in lockstep with the Chen defense team. The public sees no effort on the part of the Democratic Progressive Party to improve human rights per se.

Over the past two years, over 10,000 people have been subject to pretrial detention. Close to that number have been detained this year alone. Over 3,000 people are currently being held in detention centers. Many have been detained merely because they were charged with a felony, or might collude with others to falsify their testimony. How many people besides Ah-Bian are being detained for all three reasons at the same time? The DPP expresses solidarity only with Chen Shui-bian. It gives no thought to demanding changes in the system of detention. That is why the public sees through its human rights lip service.

Chen Shui-bian enjoys freedom of expression. He has the right to denounce the justice system and run crying to a foreign government. What we want to know is whether the Democratic Progressive Party feels any political or moral obligation to uphold our national dignity?

中時電子報 新聞
中國時報 　2009.09.29
社論－推動修改羈押法制 比聲援扁更有意義
本報訊

高等法院以虞逃、滅證及重罪三個理由續押前總統陳水扁。陳水扁則於美國訴請美國總統歐巴馬啟動在台的美國軍事法庭介入，讓他解除羈押；理由是扁在位期間常依美國在台協會指示行事，因此應將之視為美國人員。

國人聆此消息，除了難以置信曾經擔任過國家元首的陳水扁，為了免受羈押而竟出此下策，踐踏台灣做為主權獨立國家的尊嚴一至於此以外，恐也不能理解他向美國主張藉由美國軍事法庭行使管轄權以及使他獲得釋放的法理邏輯。但是，扁的海外法律行動，卻已使得台灣高等法院以其有逃亡之虞而續押三個月的決定，似乎有了更多的支持理由。

平情而論，不論扁的主張有多荒謬，法院都不應只憑他是否對法庭態度恭謹而決定是否應該續行羈押。若是以他身犯已受無期徒刑宣判之重罪罪嫌為由續行羈押來看，所根據的刑事訴訟法重罪羈押的規定是否合憲，很有討論餘地，但這是一個通案問題而非扁的特殊遭遇，本該在審前羈押制度上全盤的檢討。以扁尚有鉅款隱匿海外認為是湮滅證據而予以續押的事由，恐怕也令因為被告在法律上並無提供自己有罪證據的義務而仍有見仁見智的商榷。海外尚有鉅款成為法院擔心扁會潛逃的動機，並非不符一般常識，現在扁的訴狀以美國山姆大叔為求救對象，一旦釋放可以躲入在台協會尋求政治庇護，形成訴訟難以進行，反而是法院不難想像的場景。陳水扁想要訴諸何國的司法程序以求脫困，那是他的權利，但他一廂情願越海投美救援之舉，使得其在台灣的法院中更難令人相信絕無逃亡企圖，似乎是個自搬磚頭砸腳的錯誤。

在政治道德愚不可及而又寡廉鮮恥的表現，當然更難獲得社會的同情；民進黨對於扁的愚行採取何種政治態度，也就備受政治智慧何在的質疑與考驗。不久前民進黨主席蔡英文求見司法院院長遭拒，呼籲賴英照院長辭職，則是另一個觸犯禁忌而應受檢驗的政黨舉措。

民進黨主席自稱代表數百萬民眾求見司法院院長，「我不是路人甲」，不應遭到拒絕，必須追問其求見的目的；眾所周知，此舉是為了要求司法院大法官儘速針對陳水扁方面聲請大法官針對周占春審理之扁案併入蔡守訓審理之案有無違憲做出解釋有關。大法官的解釋，可能直接關係到地方法院扁案審判庭組成是否合法、扁案判決是否有效的問題。第一大在野黨為此到司法院敲門求見，不但關係聲請釋憲的個案！也關係到陳水扁正在進行的司法審判，號稱不是要干預個案，說服力有限；此中可能受到干預的司法個案，其實不只一個。

司法院院長在禮貌接見與拒絕求見之間，應該有所選擇，這是思考司法獨立社會觀感必須謹慎的所在。賴院長決定以司法獨立為由拒見，是一個正確而且明智的決定。應該受到批判的，反而是不知節制，忘記政黨分寸的民進黨主席。

正因為民進黨主席不是路人甲，所以應該避免挾政黨努力駕凌司法的惡劣觀感，否則恐與當年國民黨自翊經營法院的錯誤，只是五十步與百步之比而已。民進黨口口聲聲是以人權保障為出發，不是為了陳水扁個人。所以難引起國人共鳴，是因為近期以來，所有的相關人權訴求，都只是圍繞著扁的個案打轉，與扁的個案策略呼應起舞，完全看不到民進黨有任何為改善人權制度而努力的行動。

別的不說，過去兩年，審判羈押的總人數都已超過萬人，今年亦已逼近此數，現在正在看守所中受到羈押者也在三千人以上；此中只因重罪或是串證之虞而遭到羈押者，大有人在，像扁一樣同時因有三個理由而遭羈押的究有幾人？民進黨單單聲援阿扁，卻不思推動修改羈押法制的途徑，會不會讓人在人權訴求上看破手腳？

陳水扁自有罵司法、告洋狀的言論自由與訴訟權，但我們要問的是，民進黨對於呵護台灣的尊嚴有沒有什麼應盡的政治道德責任？