Thursday, October 22, 2009

The Impact of Interpretation 665 on Felony Offenses

The Impact of Interpretation 665 on Felony Offenses
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
October 22, 2009

Chen Shui-bian petitioned for a constitutional interpretation. The Grand Justices responded with Constitutional Interpretation 665. Its most controversial aspect is the "felony detention" provision. A majority of the Grand Justices ruled that "legislating from the bench" was constitutional, but they added a separate clause. The logic of the opinion was flawed, but at the practical level, the public let out a collective sigh of relief.
The provisions of Article 1 of the Code of Criminal Procedure outlines the conditions for the detention of suspects. The law is quite clear. It can be divided into several parts. One: The defendant is questioned by a judge, who decides whether sufficient suspicion exists. Two: The judge asks whether failure to detain the person will make prosecution or trial impossible, therefore whether detention is required. Three: The judge asks whether the suspect is a flight risk, whether there reason to believe the suspect is a flight risk, whether there is reason to believe the suspect will destroy evidence, or engage in a conspiracy to commit perjury, and whether the crime is punishable by death, a life sentence, or a five year minimum sentence.

According to these provisions if a person is "under a high degree of suspicion, or requires detention, or there is reason to believe the suspect may destroy evidence or engage in a conspiracy to commit perjury," the judge may order the person detained. If the person is "under a high degree of suspicion, requires detention, is charged with a crime punishable by death, a life sentence, or a five year minimum sentence," the judge may order the person detained. This is the origin of the term "felony detention."

Clearly the term "felony detention" is likely to lead to misunderstandings. It is likely to be misundertood. People are likely to conclude that once one is suspected of a felony, one may then be detained, without considering other factors. But under current legal provisions, this is clearly not the case. As mentioned earlier, judges must also ask whether the supect is "under a high degree of suspicion," or "requires detention." Moreover, the law requires the judge to personally question the defendant before arriving at a decision. The judge must personally examine the case, listen to the suspect's words, observe the suspect's behavior, examine the prosecution's evidence, and only then arrive at a judgment. The judge's ruling must reflect the strength of the prosecution's evidence. What qualifies as "high degree of suspicion" or "requires detention?" That depends on whether the defendant might repeat the crime or threaten witnesses.

News reports over the past tell of many judges mistakenly releasing murderers, serial rapists, and armed robbers. This was the result of judge's faulty judgment while considering these conditions. Judges are human beings. Human beings will invariably be deceived or blinded by their experience, their knowledge, or the defendant's guile. When such mistakes occur, everyone denounces the judges for releasing suspects willy nilly. No one asks whether felony detention is constitutional.

Chen Shui-bian and those riding to his rescue have made an issue of felony detention. They have cleverly focused attention on the easily misunderstood term "felony custody." They have forced the Grand Justices to waste time repeatedly explaining the meaning of the term, and explaining how different judges hold different opinions on the matter. The Grand Justices ruled that the so-called "felony detention" law was constitutional. but added a separate clause, namely the aforementioned "high degree of suspicion, requires detention, death penalty, life sentence, or minimum five year sentence" clause. They also required "reason to believe the suspect was a flight risk, that the suspect is under a high degree of suspicion, requires detention, or has committed a crime punishable by death, a life sentence, or a minimum five year sentence." By doing what they did, the Grand Justices were of course "legislating from the bench." But their intention was to reduce controversy over whether the felony detention law should be eliminated. Their decision was a compromise to ensure that the law would be enforced with greater care.

The product of such compromises in legal logic can never be perfect. One dissenting judge said the law links different concepts such as "felony," "flight risk," and "conspiracy to commit perjury." Today's interpretation includes such language as "reason to believe the suspect is a flight risk" in a law pertaining to felonies. Doesn't this amount to conceptual confusion? Doesn't this suggest that the felony detention law has no basis in law, and shouldn't exist? Otherwise, why the need to add flight risk and conspiracy to commit perjury as justifications? Furthermore, the new clause requires "reason to believe the suspect is a flight risk and may conspire to commit perjury." Compare this to the clause, "evidence of a flight risk and conspiracy to commit perjury." Doesn't this amount to regression on human rights? Logically the dissenters' arguments hold water. But the Grand Justices' conclusion was that the "felony" clause was a compromise closer to society's expectations. The system has worked for so many years. Just because Chen Shui-bian is challenging it, why must his challenge be suddenly touted as a major human rights case?

Dissenters also raised the issue of foreign felony detention laws that cited case law. By contrast our own laws throw in the kitchen sink, citing the death penalty, life sentences, and minimum five year sentences. We can of course change the law. But asking the Grand Justices to amend the law is going too far. The Grand Justices' answer can be summarized in one sentence: The felony detention law must not be eliminated!

2009.10.22 04:18 am









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