Frank Hsieh: Don't Bankrupt Judicial Power
The media and public opinion are unduly influencing the justice system, argues former DPP presidential candidate Frank Hsieh, who offers his perspectives on the path to judicial integrity.
Frank Hsieh: Don't Bankrupt Judicial PowerBy Rebecca Lin, Yi-shan Chen
From CommonWealth Magazine (vol. 414 )
The trial of former President Chen Shui-bian on corruption charges is receiving intense media exposure, and many feel that undue political pressure has been placed on prosecutors and judges, undermining public trust in the independence of the judicial system. With many people questioning the credibility of Taiwan's courts, how can the Taiwanese judiciary regain the trust of the public? Frank Hsieh -attorney, former Democratic Progressive Party chairman, premier under Chen Shui-bian, and erstwhile presidential candidate-offers his views on the issue.
The most severe threat to the judiciary right now is that the power vested in it by the state is being bankrupted. What is most worrisome about a judiciary whose credibility has gone bankrupt is that it won't be able to make use of its power of moral sanction, so that ultimately the only thing it will have left is physical coercion.
Robbers can also catch people and seize things. They too have the ability to change the physical state of things. But our society believes that robbery is not right, because it does not have a moral basis. That's what makes the key difference between judicial power and robbery.
Recently, a number of public opinion polls have shown that 30 to 40 percent of the public feel that the judiciary is stepping backwards. That's a serious issue, because state power without a moral basis is eventually no different from robbery.
If the Courts Have No Integrity, Politicians Will Abuse the Law
The opinion polls showed that if the legal community does not do some soul-searching, it will have to live with that grief. But what we see now is that those practicing the law don't respect themselves, so that the politicians abuse the law.
Regarding the Chen Shui-bian case, I think that from a purely judicial perspective someone who faces corruption charges should not participate in demonstrations. But given that talk show hosts keep commenting on this case on TV every day, this has turned into trial by media or public opinion. When a trial becomes everyone's business, it becomes political. Since the judiciary is using a political approach, the defendant uses political means as well. If this case is to return to the realm of the courts, then both sides need to calm down.
But at the moment every link in the chain, from prosecutors to judges and the media, is harming the judicial system. In the most recent development in this case, we have seen information being leaked at the criminal investigation stage, but the leaks have not been looked into thoroughly. I think with these leaks the prosecution has brought shame on itself, because if information keeps leaking out, how can the public trust that this case is being handled impartially?
The prosecution and the media have presently developed a symbiotic relationship, but the people in the judiciary should know that the media are sharks! If you want to play with sharks, you need to make sure that you don't bleed or else you will be killed. A while ago TV footage showed reporters chasing after prosecutors – isn't that the best case in point?
Judicial officials need to be wise. They mustn't dance to the media's tune. Of course, it is impossible for judges and prosecutors to try cases in a vacuum. That's why they need to be wise and make utmost efforts to protect the judiciary's reputation. For instance, Chen's trial hasn't even started, yet TV talk show hosts and lawmakers were analyzing the judge's character and making categorical assertions that he would definitely take Chen into custody. In the end the judge indeed ruled that Chen be returned to custody. The judge might say that he followed the principles of independent judgment, but on the face of it, it looks as if he took orders from the media. It remains to be seen whether the judges have the wisdom to free themselves from the impression that they are taking directions on how to handle the case, or even lash back and accuse the talk show hosts of harming the judiciary's dignity.
Moreover, prosecutors need to have self-respect and recognize that being a prosecutor is a very lonely job, or else their emotions may easily be abused. The law guarantees lifelong tenure for judicial officials in the hope of safeguarding their independence and making sure that they do not yield to pressure.
But what is the definition of a big case? These are cases that cause a furor and involve powerful figures. And is the public really aware of what the conviction rate is for such high-profile cases?
Ultimately, just 30 percent of those charged in graft cases are convicted of corruption. Yet because of their involvement in such cases, many civil servants have their careers ruined and may even become depressed for the rest of their lives. But if we continue like that, doesn't this mean that every civil servant who dares to actually do his job risks being seen as seeking personal gain? And that those who sit back and do nothing won't have any problems?
The Ministry of Justice should set up a dedicated organization that thoroughly follows up on information leaks during the process of criminal investigation. When prosecutors are transferred and promoted to higher posts, the conviction rate for cases that they have handled should also be examined. If we don't do this, prosecutors might destroy innocent people, ruin their youth, tarnish their reputation and even drive them into a hopeless situation.
The President Needs to Take Responsibility for Judicial Reform
I think that President Ma Ying-jeou could do a few things. I don't deny that Taiwan needs its Investigation Bureau, but President Ma should publicly declare that he will not read intelligence service information on domestic politicians. Furthermore, he should vow that he will not give any prosecutor instructions as to how to handle a certain case.
Reading intelligence service information is addictive. In order to curry favor with the higher-ups, the intelligence agencies will provide intelligence information on political foes. Once the president has become addicted, he will easily lead the country in the wrong direction. If Ma made a public statement in that regard, such acts would diminish.
Many people blame the DPP for failing to carry out judicial reform during its eight years in power, and claim that it only has to blame itself for its troubles. I think that the DPP definitely should take part of the blame.
Judicial reform is the job of the president and the majority party in the Legislative Yuan, since judicial reform is not administrative reform. The laws governing judicial officials also apply to prosecutors, and the competent authority over these laws is the Judicial Yuan, which needs to be called into action by the president.
On top of that, judicial reform often comes as the last step of political reform, because reforming such a cloistered system is very difficult. Moreover, with the severe confrontation between the two major political parties, there is only resistance, and reform is impossible.
The government and the opposition should realize that any person in the public eye should take responsibility for his words and deeds, so that society's trust in the judicial system increases. For appearance's sake, judges and prosecutors should at least refrain from revealing their personal convictions [about a defendant's guilt or innocence]. They should not let the populace administer justice. Otherwise, the public will not trust the state, and they will think that the judiciary can be influenced.
If this continues until the very end, those with power will use their power, and those with money will use their money, while those who don't have money will use their personal connections to influence the judiciary. Finally, the judiciary's credibility will go bankrupt, and Taiwan's public order will definitely be destroyed. The judiciary must not allow those who know the tricks to play games with it. The judiciary needs to treat all men alike; only then can it gain the people's trust.
(Compiled by Chen Yi-shan)
Translated from the Chinese by Susanne Ganz
Chinese Version: 若無倫理基礎 司法，與強盜無異