Taiwan’s Justice On Trial

Posted December 5, 2008

The political uses and abuses of Taiwan’s criminal-justice system have been a topic of controversy among lawyers and legal scholars for years. Since a new government took office in Taipei in May 2008, criminal justice has come under fresh scrutiny as the government of President Ma Ying-jeou prioritizes investigations into the conduct of the previous administration.

The result is an unprecedented number of investigations and indictments of former and current government officials, all identified with the pro-independence Democratic Progressive Party. The tactics used by prosecutors in pursuing these cases and the adequacy of safeguards against arbitrary prosecution have been questioned by international scholars and human-rights groups as well as by legal professionals within Taiwan, even as the Ministry of Justice strongly denies any politicization of justice.

Foremost among the high-profile suspects are former president Chen Shui-bian and his wife, Wu Shu-jen, who are under investigation for alleged fraud and embezzlement, among other charges. For the first time on Nov. 11, Taiwanese citizens watched on television as a twice-elected head of state was handcuffed and detained as a common criminal. Raising his manacled hands in defiance, Mr. Chen claimed he was a victim of persecution by his successor, President Ma of the Kuomintang, or KMT.

Consequently, few Taiwanese doubt that he is guilty of criminal misconduct. Whether this presumption of guilt is justified will not be known until he is indicted and found guilty in a fair trail.

Yet the drama of a former president and many other high-level figures put under criminal investigation places the justice system in a public spotlight, along with the defendants.

Besides the former president and first lady, other prominent cases include former Vice Premier Chiou I-jen, former Interior Minister Yu Cheng-hsien, retired Ministry of Justice Investigation Bureau Chief Yeh Sheng-mao, former director of the Hsinchu Science Park, Dr. James Lee, Yunlin County magistrate, Su Chih-fen, Chiayi County magistrate, Chen Ming-wen, and others. All are or were members of the now demoralized DPP which has returned to its familiar role in opposition since May 2008.

“Taiwan’s courts will have to be careful with these cases because the rest of the world is watching,” says political scientist Jean-Pierre Cabestan of Hong Kong Baptist University. “The pressures to convict will be strong, but they will need to present legal evidence.” Other observers say that with the KMT’s return to power, it is especially important for the government to appear to be fair and to conform to its own criminal procedures. “Given Taiwan’s history, there needs to be extra sensitivity from a party that has a record of using the law against its opponents,” says Stephen Yates, a former Asian affairs aide to U.S. Vice President Dick Cheney and now president of the consulting group, D.C. Asia Advisory.

Less demanding observers of Taiwan’s democracy may be surprised to hear that there are still problems with human and civil rights on the island. After all, there have been four direct presidential elections with two transitions of power among the political parties, and freedom of speech and press are relatively well established. Some experts on Taiwan affairs say that the record of criminal justice is too murky to come to clear conclusions, as many laws and practices date to the martial law era (1948-87). They say the island’s legal system is not well understood by outsiders, and they are wary of concluding that justice has been politicized when it may only be poorly administered.

But the island’s democracy is barely two decades old, and there is the continuing legacy of a Chinese political culture that does not accept the modern idea of a loyal opposition. As the first president of the Republic of China who was not from the KMT, Mr. Chen has been an enemy of the fusion of party and state that is the KMT’s ideological heritage.

He and the DPP have also struggled, sometimes foolishly, to deny the proud Chinese identity that the Nationalist government brought to the island when they lost the Chinese civil war in 1949 and to replace it with a new Taiwanese identity. These battle lines were drawn years ago. But Mr. Chen and the pro-independence party he once led are now more vulnerable to retribution than at any time since the KMT tried to decapitate the tangwai, or outside the party movement, in the Kaohsiung incident of 1979.

In this adverse environment, Mr. Yates and others familiar with his case say that the experience of Dr. Shieh Ching-jyh illustrates the complex legal and political challenges that Mr. Chen and other prominent defendants are facing with their pending court trials. Dr. Shieh is a former deputy minister at the National Science Council who was indicted two years ago and acquitted this summer. Despite its happy outcome, Dr. Shieh’s case exposes the inadequacy of legal safeguards against arbitrary prosecution and the ease with which the considerable powers of prosecutors may be misused by unscrupulous politicians and other interested parties.

A U.S.-educated aeronautical engineer with expertise in missile guidance and control systems, Mr. Shieh served with distinction at Taiwan’s National Science Council for nearly six years. Then in May 2006, after 31 hours of questioning, he was ordered detained on suspicion of favoritism in awarding a NT$8.1 billion (just under $250 million) engineering contract. Rudely confined to a tiny cell just five feet by nine feet in size with several other colleagues, he was held incommunicado for 59 days with no visits from family or friends.

For Chu Tsao-liang, the aggressive chief prosecutor in the southern county of Tainan, this was a major case. More than 40 boxes of documents were taken from the homes and offices of the suspects as prosecutors worked up charges against them, using more than 70 staff to sweep up the evidence. In all, 10 professional and civil service personnel were detained without warrants for up to four months, as permitted under Taiwan law. Taiwan’s prosecutors have considerable autonomy regardless of which party is in power, though there are sometimes nationally coordinated campaigns such as crackdowns on vote-buying during election campaigns.

Even before their indictments came down at the end of 2006, the reputations of Mr. Shieh and his colleagues had been damaged, their lives turned upside down by negative publicity in the news media over false allegations of corruption and bribe-taking. In Mr. Shieh’s case, prosecutors asked for a prison sentence of 15 years, plus a heavy fine.

During his detention, meetings with his lawyer were observed by prison guards who took notes, and recorded and videotaped their discussions. If not for some crucial documents that the prosecutors overlooked, Mr. Shieh says he could not have mounted a credible defense, since he had no access to the confiscated materials. Two years later on July 30, 2008, all the defendants were acquitted. In a 148-page verdict, the judge ruled that there was no basis for the charges and Mr. Shieh and the others were completely exonerated.

Telling his story to a rapt audience at the Heritage Foundation in Washington, D.C. late last month, Mr. Shieh said that the prosecutor had been ambitious at the expense of his freedom and human rights. He speculated that his prosecution was the outcome of a money-fueled campaign against him by a losing bidder on the complex engineering project who was judged to be unqualified.

The project asked for proposals to mitigate vibrations caused by Taiwan’s new high-speed train passing through the science park which disrupted manufacturing operations at nearby semiconductor plants, causing financial losses. It was a serious issue that had defeated Mr. Shieh’s predecessors and was forcing companies to move out of the high-tech industrial zone. A panel of professional scientists and engineers determined which bidder’s proposal was workable, and the problem has since been solved. “I’m feeling good about this outcome because it shows that an aerospace engineer can solve problems on the ground, too,” Mr. Shieh said.

Asked to explain how he became the target of false accusations, he speculates that one of the unsuccessful bidders worked in cahoots with several national legislators, who publicized allegations and rumors through the news media that prompted prosecutors to investigate. Perhaps they believed they could force authorities to re-open the bidding with such tactics, as happened a decade earlier in Kaohsiung with the city’s subway project. There was also the incidental matter of Mr. Shieh’s affiliation with the Taiwan independence movement, which was clearly mentioned by a prosecutor in announcing his detention. Although Mr. Shieh has no evidence that his case was politically motivated, he felt vulnerable to vindictive treatment because of his membership in the DPP and his political activism in the U.S. before returning in Taiwan a decade earlier.

In an added political twist, the KMT publicized his case, along with others, through national TV and newspaper advertising to spread their claim that the DPP-lead government was rife with corruption during a legislative election campaign. Mr. Shieh’s photo was prominently displayed along with allegations of greed and bribe taking. At this point, Mr. Shieh said, even his close friends thought he had done something wrong.

The situation is not unusual and illustrates the ease with which rumor mongering and willing politicians can influence the justice system, Mr. Shieh said. “Sometimes it’s not clear whether the media is reporting on the investigation or whether the prosecutor’s investigation is based on allegations in the media,” he explained to his Washington audience. Prosecutors grab circumstantial evidence gathered from the press to detain a suspect, fishing for facts as they hold the suspect incommunicado.

Unfortunately, lawyers and academics say that Mr. Shieh’s case is not unusual. The most exceptional aspect of his case may have been that he had a conscientious and fair-minded judge. It’s not clear whether the mistaken assumptions that underlay the charges against Mr. Shieh are reflected in some of the ongoing investigations. But if so, it places a burden on the government to strengthen public faith in the rule of law. “Even if it only appears that the criminal-justice process is being used for political purposes, then a more energetic effort is needed to correct this public perception,” says Mr. Yates.

Among the controversial features of Taiwan’s criminal procedures is its pretrial detention law, which allows prosecutors to ask a judge for immediate detention if there is concern the defendant could falsify evidence, collude with others or flee the country. It’s a provision found in many countries’ criminal codes, though defense attorneys say that prosecutors in Taiwan abuse the rule by too frequent use. Indeed, almost every DPP official currently under investigation has been held in detention at some point, while it has rarely been used against KMT defendants in the past.

On Nov.13, international lawyer and REVIEW contributor Jerome Cohen wrote in a commentary on Taiwan’s judicial system in the South China Morning Post that there may be justification for such a rule. “Yet, in view of the harshness of this pre-indictment sanction and the obstacles it creates to mounting an adequate defense, it ought to be invoked rarely,” wrote Mr. Cohen, who was Mr. Ma’s law professor at Harvard University.

While not arguing for Mr. Chen’s guilt or innocence, many observers have questioned the necessity of his handcuffing and detention, which publicly signified guilt and humiliation and produced the dramatic images of a fallen leader for the national press. “There clearly exists a contradiction between the presumption of innocence on the one hand and the system of pretrial detention on the other,” wrote lawyer Lin Feng-cheng of the Judicial Reform Foundation. Following Mr. Chen’s detention, the foundation issued a statement recommending that the pretrial detention practice be curtailed. “This is an issue that can no longer be evaded,” the statement said.

The Presbyterian Church in Taiwan, an influential voice on matters of human rights, has also protested the detention law, calling it a basic violation of due process and the rule of law. And the church called attention to the problem of pretrial publicity and “trial by press” which weakens defendants and violates the rule of presumption of innocence.

Some observers say that this may be the most serious shortcoming of Taiwan’s criminal-justice process, since the selective public revelation of information in defendants’ case files brings pressure on prosecutors and defames the defendant in ways that acquittal cannot reverse. The rule on public disclosure authorizes limited access during the investigation phase of a case. But a defense attorney in an ongoing investigation said the prosecutor in his case often briefed the press, while he himself was he warned not to disclose information.

Prompt justice may be another casualty in the recent anticorruption campaign. The U.S. State Department’s 2007 human rights report on Taiwan noted that the typical delay between indictment and trial is only three months. But former first lady, Ms. Wu, was indicted in November 2006 on charges of document fraud and embezzlement involving the “state affairs fund,” a loosely regulated presidential office slush fund. Two years later, her trial had not had yet begun, amid speculation that the prosecutor’s case is weak and that other investigations are likely to lead to more serious charges. Her husband’s indictment as a co-defendant in the case is expected by the end of 2008. Meanwhile, a number of cases involving senior KMT officials are on hold, some delayed for years.

Minister of Justice Wang Ching-feng published a statement on Nov. 24 addressing many of these concerns, especially the perception that the recent investigations and indictments had been politically selective. The statement was a response to an “Open Letter on Erosion of Justice in Taiwan” signed by a group of international scholars and writers sent to her and the head of Taiwan’s Judicial Yuan before the former president was detained. She attributed these concerns to a “lack of understanding or perhaps misunderstanding of due process of law in Taiwan.”

Explaining the recent surge of investigations, she wrote that there had been numerous cases of corruption in recent years which “have had a considerable negative impact on the public’s trust in our government.” As a result, she said, the new government faced a strong demand from its citizens for honesty and social justice. “Therefore, a top priority of the current administration . . . has been to fulfill its mandate to ensure clean government.” She rejected the claim that the KMT was using the judicial system to punish its adversaries: “This creates the impression that Taiwan’s judicial system is susceptible to political manipulation, which quite simply is untrue.”

Minister Wang also affirmed the rules about presumption of innocence and confidentiality, saying that “maintaining the confidentiality of investigations is an axiomatic consequence of the principle of the presumption of innocence.” She defended pretrial detention as a normal practice under certain conditions. “As for the disclosure of judicial procedures, openness to public scrutiny is allowable only during trial procedures and is not applicable to the pretrial investigatory procedures,” she explained. Before the trial, information about investigations can only be released to the public by a spokesman for the prosecutor’s office.

These disputes over the gaps between theory and practice of Taiwan’s criminal justice procedures will continue in the year ahead as former President Chen and other prominent figures face charges in a court of law. The transparency and fairness of the process will be a test of the maturity of Taiwan’s democracy as it struggles to prove that its criminal-justice system serves the people, not the rulers.

Julian Baum, a former Taiwan correspondent for the REVIEW, is based in Richmond, Virginia.