The Jiang Yi-hua Summons carries Grave Implications

The Jiang Yi-hua Summons carries Grave Implications
China Times editorial (Taipei, Taiwan, ROC)
A Translation
August 1, 2014

Summary: When the police expelled Sunflower Student Movement members who forcibly occupied the Executive Yuan offices, 23 people were injured. Five people, including Premier Jiang Yi-hua and National Police Administration Chief Wang Cho-chun have been summoned by the Taipei District Court, on suspicion of attempted murder. Premier Jiang and the others agreed to appear in court. The hearing lasted nearly eight and a half hours. The judge may summon Premier Jiang again. But if the charges fail to stick, the case will be dismissed.

Full Text Below:

When the police expelled Sunflower Student Movement members who forcibly occupied the Executive Yuan offices, 23 people were injured. Five people, including Premier Jiang Yi-hua and National Police Administration Chief Wang Cho-chun have been summoned by the Taipei District Court, on suspicion of attempted murder. Premier Jiang and the others agreed to appear in court. The hearing lasted nearly eight and a half hours. The judge may summon Premier Jiang again. But if the charges fail to stick, the case will be dismissed.

This was the first time a premier has ever been summoned to appear before the court as a defendant in a criminal case. To prevent students and other protestors from precipitating a conflict, the Zhong Zheng District Police Precinct Number 1 deployed over 200 officers to the scene. Approximately 100 students and other protestors said they intended to file suits against Premier Jiang. Fortunately, no violence ensued.

On March 24, protestors were expelled from the Executive Yuan. Huang Ming-chong, an associate research fellow at the Academia Sinica, and 23 other people were injured. Sunflower Student Movement lawyers went into action. A total of six criminal suits were filed. Different judges with the Taipei Court heard the cases. One of the cases named President Ma Ying-jeou as defendant. But the constitution stipulates that unless a sitting president is guilty of fomenting internal or external strife, he will remain immune from criminal prosecution as long as he is in office. As a result, Ma received a temporary waiver. But he may face litigation upon leaving office.

This case established many historical firsts, It highlighted the judge's boldness in the pursuit of social justice, and Premier Jiang's respect for justice. But it also left behind six serious constitutional, judicial, and political questions. It means no end of trouble. If the public is not vigilant, and watches from the sidelines while judicial and political manipulation establishes a precedent, political and judicial chaos will eventually spread and sink the nation.

The first question we must ask is whether a premier can be charged with a crime for carrying out his administrative duties. This is the first time a premier has been prosecuted in a criminal case for the performance of his official duties. A single incident resulted in six charges. The underlying motive is obvious. It is clearly an attempt to amplify the Sunflower Student Movement's impact on society. It is an attempt to make the executive branch and police afraid to enforce the law during future mass protests. It is an attempt to paralyze the government.

The latter is especially true. Future court cases will need to convene three, five, even seven times before they can be closed. The Sunflower Student Movement has ensured that dozens of court cases will be convened. The premier will become a permant resident in the courtroom. The aim of paralyzing the government will be achieved. Provided with such a template, any and all suits against civil servants will automatically name the premier of other government heads as defendants, forcing them to appear before the Legislative Yuan or judges. Government paralysis is just around the corner. Presiding judges will convene hearings and summon government heads even before the case goes ahead. Can any government operate under such conditions? Can Taiwan survive?

Second, according to this logic, the defendants and the administration are one and the same. Chief Executives must determine whether civil servants have violated the law by watching news reports. They must immediately order them to cease and desist. If they fail to do so, they will be considered accomplices and found guilty. The is the "chief culprit" logic of the Kaohsiung Formosa Incident. It held the chief executive criminally liable for everyone's conduct, and it is equally absurd. If prosecutors define crime this way, the consequenses will be unimaginable. The plaintiffs in these suits applied the same logic as the White Terror. Don't the plaintiffs realize prosecutors could well follow this precedent?

Third, when a large number of people occupy a government office, dispersing them may lead to injuries. If the police cannot expel them, then thousands of people can occupy the Legislative Yuan. the Executive Yuan, and even the courtrooms. As long as they sit and refuse to leave, they cannot be expelled. Chaos will be just around the corner. Labour can then occupy corporate headquarters, students can occupied campus buildings, debtors can occupied creditor's homes, and police cannot evict them. How can society possibly function?

Four, the plaintiffs argue that if the assembly is peaceful, they cannot be evicted, even if the occupation is illegal. But how can scaling a wall and occupying a government office constitute peaceful assembly? The protestors forced their way into government offices and occupied them. They say this conduct was peaceful and therefore they cannot be evicted. Can they break into homes and occupy them? Can they break into schools and occupy them? Can a row of people sitting hand in hard and resisting the police be termed peaceful? Police cannot of intentionally hit people. But they must never be afraid of dispersing people because someone may get hurt. To label that state violence is the reasoning of anarchists. Any nation with a government is going to have violence. The only question is whether that violence was legitimate, whether the timing was appropriate, and whether it complied with the principle of proportionality. The issue is not whether the police should enforce the law.

Five, The facts of the case are the same for both the plaintiff and the defendant. Not trying the cases together allows the plaintiff to play with the selection of judges and waste the resources of the legal system. The decision to hold separate trials must be questioned.

Six, In the past, former President Lee Teng-hui, President Ma Ying-jeou, and five premiers, were often named as defendants in lawsuits. But the court seldom if ever summoned them, because the cases obviously had nothing to do with them. According to the Criminal Procedure Law, plaintiffs may demand prosecution or file their own lawsuits. To avoid frivolous lawsuits, litigation laws stipulate that "unless absolutely necessary, judges may not summon the defendant in advance." Yet the very first thing the judges in this case did was to issue summons to the premier and chief of police. Suppose members of the public unhappy with government policy willfully file lawsuits against heads of state and government leaders? Suppose judges go along with them by summoning the defendants? Such lawsuits would become a means of unlawful prosecution.

Bloodshed is of course regrettable. But no country can allow its administrative centers to be occupied by mobs. Jiang Yi-hua is the premier. He was not wrong to order police to evict illegal occupiers from government buildings. If blood was shed, that is a police enforcement matter. If Jiang Yi-hua becomes a defendant in an attempted murder case, the trial will be a farce.

社論－江宜樺出庭的嚴重後遺症
2014年08月01日 04:09
編輯部

行政院長江宜樺、警政署長王卓鈞等5人，因警察驅離太陽花運動中攻占行政院辦公大樓的群眾，造成23人受傷事件，遭台北地院以涉嫌殺人未遂罪嫌傳訊。江揆等人坦然出庭，庭訊長達近8個半小時。法官不排除再次傳訊江揆等人，但若認定不成立，則會駁回自訴。

本案是閣揆首次因涉嫌刑事犯罪，以被告身分接受法院傳喚出庭。轄區中正一分局為避免學生和民眾前來抗議而發生衝突事件，出動了200多名警力維安，約百名學生和民眾到場表示支持狀告江揆，所幸沒有發生衝突。

324 政院驅離行動，造成中研院副研究員黃銘崇等23人受傷，在太陽花運動律師團操作下，共提出6件刑事案件自訴案，均在北院分由不同法官審理中，其中一案自訴 對象包括馬英九總統，但因《憲法》明定，現任總統任期內非因內亂外患罪不受刑事追訴，因而暫免出庭，但已留下他卸任後可能必須面對司法訴訟案件的伏筆。

本案創下許多歷史首次，雖已彰顯法官追求真實及社會正義的勇於任事態度，及江揆等人尊重司法的豁然大度，但同時也留下憲政、司法與政治的6大疑慮，恐怕後患無窮。社會若不以為意，坐視形成司法及政治運作慣例，則政治與司法亂局的死結將愈綁愈緊，國家終將沉淪。

我 們必須面對的第一個嚴肅問題是，行政院長可否因行政一體而一併論罪？本案是閣揆因公務員執行公務而成為刑事自訴案件被告的首次，且一事6案。其背後動機至 為明顯，顯然與企圖延續太陽花運動政治張力、造成未來行政及警政首長面對群眾抗爭事件時心生忌憚，並藉機癱瘓政府運作有關。

尤其後者，未 來每一個案子不開3、5、7次庭是不可能結案的，太陽花運動相關案件幾十個庭開下來，將把行政院長陷在法院中，癱瘓政府的目的就已經達到。如果有樣學樣， 凡是公務員違法事項，一概自訴行政院長或各級首長，要他們跑立法院之餘，連法院也跑不完，政府癱瘓指日可待。每一個受訴的法官，都自顧自開庭，傳政府首長 來問問再決定要不要受理，政府還能運作？台灣能受得了嗎？

第二、按照自訴人行政一體的邏輯，行政首長可以從媒體上看到公務員執勤時有違法 的可能，不立刻下令阻止就是共犯，就應該論罪。這個邏輯和美麗島案件首謀者，要為所有人的行為負刑責，不是一樣的荒謬嗎？檢察官如果也採取這樣的方法論 罪，那還得了？自訴人所為，不是在證明白色恐怖時代的論罪邏輯有理，不怕檢方有樣學樣嗎？

第三、群眾強占政府辦公場所，只要人多，因為驅 離可能傷人，警察就不可以驅離，那麼不管是立法院、行政院、甚至法院，只要有千百群眾呼嘯而來，坐著不走，就不可驅離，台灣無政府狀態，指日可待。勞工比 照聚眾占領企業總部、學生占領校舍、債權人占領債務人居所，警察都不可以執法驅離，社會又要如何運作？

第四、自訴人強調，只要是和平集 會，不管場所合不合法都不得強制驅離，翻牆強入霸占政府辦公場所，叫做和平集會嗎？強行進入政府機關霸占，說是和平不能驅離，那闖入而霸占民宅呢？闖入而 霸占學校呢？一排人坐著手勾手用力抗拒警察，能叫做和平嗎？警察執法當然不可以故意打人，但是絕不可能因為怕有人受傷就一概不得執行驅離，如果說這是國家 暴力，那是無政府主義者的道理，任何一個要有政府存在的國家，都會有暴力行為的存在，這只是一個執行程序是否合法、時機是否適當及手段是否符合比例原則的 問題，而非警察該不該執法的問題。

第五、在提告事實和被告相同下，未併案一起審，讓自訴人有「玩」選法官的訴訟策略空間，且有浪費司法資源之虞，法院分案顯然值得檢討。

第 六、過去，前總統李登輝、總統馬英九及五院院長，經常是自訴案被告的常客，但法院幾乎沒有傳喚他們出庭，因為這類自訴案一看就知道與他們無關。依據《刑事 訴訟法》，被害者可提告訴或自訴，為避免濫訴，訴訟法已規定法官「非有必要，不得先行傳訊被告」。本件自訴案法官第一次開庭就急著傳訊行政院長及警政首 長，日後若是民眾不滿國家政策動輒自訴元首及首長，法官依樣畫葫蘆傳訊被告，自訴豈不成為濫訴的工具？

流血衝突固然令人遺憾，但沒有任何國家能忍受行政中樞被群眾攻占；江宜樺身為行政院長，下令警方將非法占據者驅離並沒有錯，流血事件是警方執法有無過當的問題。如果江宜樺因為下令驅離就成為殺人罪被告，豈不荒唐。