Friday, August 3, 2007

Chen Shui-bian's Veiled Threat against the Judiciary

Chen Shui-bian's Veiled Threat against the Judiciary
China Times editorial
translated by Bevin Chu
August 1, 2007

"Transitional Justice" has been a hot topic on Taiwan lately. Its main theme is how to confront, process, and correct the negative impact of authoritarianism on a political system or culture. This requires close attention by men of vision, who must not assume that authoritarianism will automatically vanish with regime change, who must not assume that authoritarianism is a defect unique to a specific political party, rather than the abuse of power by any political authority. The implementation of Transitional Justice is often difficult, because those implementing Transitional Justice are often guilty of the same abuses as those they just replaced. They may fly the banner of democratic reform, but they have inherited the same habits, the same manners, and the same propensity to abuse power as those they just replaced. This is what makes the implementation of Transitional Justice so difficult.

President Chen received a foreign visitor the other day. Citing "Transitional Justice" as his reason, he spoke of the problem of judges and public prosecutors who were unfit for office. He cited the example of East Germany, which eliminated over five-tenths of its judges and public prosecutors. By contrast, Taiwan has not undergone the same process. He said it was difficult to avoid intervention by judges, public prosecutors, and criminal investigators, who motivated by political factors or election considerations, engaged in attempts to influence or even manipulate the results of ROC presidential elections. President Chen's words provoked an immediate reaction from the Judicial Yuan, the Prosecutors' Reform Association, and the private sector Judicial Reform Foundation. The consensus was that his remarks were improper. Examination, prosecutorial, and investigative bodies all affirmed that judicial personnel should not and would not abuse their authority to intervene in the presidential election. Some appealed to President Chen to exercise caution, to avoid misspeaking, and to avoid indiscriminately tarring everyone with the same broad brush.

Taken at face value, Chen's speech was a bold call for justice. Taken at actual value, it was a chilling threat against an independent judiciary. According to his logic, the government needs to engage in the wholesale elimination of judges and public prosecutors. The criterion for elimination would be which judges and public prosecutors are having an undesired impact on the presidential election. Those judges and prosecutors currently prosecuting the two presidential candidates, who have the power to influence the candidates' election prospects, are targets for elimination. Who has the authority to decide which judges and prosecutors are "unfit for office," therefore must be eliminated? Who else but Chen? Who is Chen suggesting as potential targets for elimination? Who else but the judges and prosecutors handling the Wu Shu-chen case, the Ma Ying-jeou case, the Frank Hsieh case, and the Chen Chu case? What is Chen telling them, if not that they will be eliminated under the pretext of implementing Transitional Justice in the event their prosecution of these cases or the outcome of these trials meet with his displeasure?

President Chen's improper remarks illustrate a problem with Transitional Justice that cannot be ignored, namely that those implementing Transitional Justice are often guilty of the same authoritarian abuses of power as those they just replaced.

Politically speaking, President Chen Shui-bian may be a lame duck. But because the ruling DPP considers the office of the president an indispensable component of its power, during the upcoming presidential election Chen will remain an influential player. On top of which, President Chen is a key figure, even an indirect litigant, in the ongoing State Affairs Confidential Expenses Case, the Wu Shu-chen case, the Ma Ying-jeou case, the Frank Hsieh case, and the Chen Chu case. Citing Transitional Justice as a pretext to hurl veiled accusations against the judiciary constitutes a serious conflict of interest, from which Chen should have recused himself. But when a head of state openly casts doubt on the impartiality of his own nation's judiciary in front of foreign dignitaries, is that merely a breach of etiquette? Or is it something far more serious -- the abuse of the power of his office in an attempt to influence or even intimidate the judiciary? Isn't a ruling regime's threat to conduct a political purge the nation's judiciary, depending upon whether pending court cases favor the ruling regime in the upcoming presidential election, precisely what "Transitional Justice" is all about?

Prior to regime change, the public had little faith in the judiciary. That lack of faith reflected weakness in the nation's political institutions. Years ago the ruling party boasted that "We own the courts." Those words probably still ring in many peoples' ears. It was the very reason some suspected the judiciary of containing "residual scum" from a bygone era. Prior to regime change, when the ruling party had the temerity to boast that "Our party owns the courts," the problem was not that a specific political party dared to boast that "Our party owns the courts." The problem was that the ruling party dared to boast that "Our party owns the courts." The name of the party was not important. What was important was that it was in power. Only the ruling party has the political wherewithal to own the courts, not the opposition party. That is why what matters is who is in power, not the name of the party in power.

If Transitional Justice is to avoid replicating past authoritarian manipulations of the judiciary, it must address two problems. The first problem is the new regime. The new regime must not be permitted to interfere with the judicial process the way the old regime did. The new regime might not have the chutzpah to openly manipulate the courts. But if the new regime nurses a morbid fear that "If we don't own the courts, then the courts will own us," and cites that as a justification for a political war against the courts, what difference is there between it and the old regime? The other problem is new judicial personnel. New judicial personnel may be unqualified to be part of a modern judicial system. But which judicial personnel should be eliminated must not be decided by the ruling regime, on the basis of partisan political advantage, on the basis of "Those who obey me, prosper. Those who defy me, perish." Such decisions must be made in accordance with human rights safeguards, with due process as a measuring rod. Political interests must make room for social dialogue, and allow deliberative democracy to inspire spontaneous reform from within the judiciary.

If the ruling regime waves the banner of Transitional Justice, while drawing no distinctions between black and white or good and evil; If it accuses the judiciary of being filled with "residual scum" in order to intimidate the judiciary and make electoral gains from specific court decisions, that constitutes a betrayal of Transitional Justice. That constitutes the trampling of judicial independence by yet another abusive political authority.

中國時報  2007.08.01









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