A work in progress
The prosecution of Taiwan's former president, Chen Shui-bian, for embezzlement, receiving bribes, money laundering and other offences has produced the most spectacular trial in the island's history. It is more famous than the Kuomintang government's 1980 prosecution of the 'Kaohsiung Eight' for Taiwan independence activities or its 1985 prosecution of its own military intelligence officials and their gangster henchmen for the assassination in San Francisco of Chinese-American journalist Henry Liu.
The case against Chen and many family members and associates is a landmark for many reasons. It is a major blow against the massive corruption and secret political donations that have plagued Taiwan's vibrant young democracy.
It is not a political vendetta by the newly installed government of President Ma Ying-jeou against the defeated opposition but a monumental demonstration that no one is above the law - not even a president. It reflects popular revulsion and disillusionment over the misconduct of the former leader of the Democratic Progressive Party, which had long courageously campaigned against KMT dictatorship and corruption.
Yet the case also illustrates the shortcomings of a legal system in transition that has only recently made great, but imperfect, progress towards democracy, judicial independence and government under law.
The life sentences meted out to Chen and his wife last Friday after a long investigation and trial merely mark the end of the first act of what will, inevitably, be an extended drama. It is a personal and political tragedy in which none of the official players, not to mention the many defendants wallowing in 'money politics', deserves to take a bow.
Although prosecutors made prodigious efforts to cope with a myriad of complex, secret financial transactions and a large number of elusive witnesses, suspects and defendants, they stained their record in several respects. Overzealous attempts to keep Chen detained, persistent leaks of confidential information to the media, and a rogue prosecutor's clandestine contacts with Chen, all detracted from their seriousness. Unbelievably, prosecutors celebrated 'Law Day' with a 'skit' that mocked their detained ex-president for protesting against the unnecessary humiliation of being handcuffed.
Instead of denouncing this blatant violation of legal ethics when it became public, the minister of justice, who attended the Law Day event, sought to defend it, evoking not a word of criticism from anyone in government.
Perhaps the most sinister by-product of Chen's prosecution is the minister's campaign to refer one of the defendant's counsel, Cheng Wen-lung, to a committee for disciplining lawyers on the grounds of alleged violations of law and ethics, stemming from his public questioning of the fairness of the judicial process and other statements made after meeting his detained client.
The Taipei Bar Association rejected this accusation as baseless. Yet, in a move reminiscent of Beijing's repression of 'rights lawyers' and Singapore's moves against anyone who questions judicial fairness, Taipei prosecutors continue to press disciplinary charges against Cheng.
If the prosecution's conduct against Chen and his lawyer has been unseemly, the Taipei District Court's early handling of the case was bizarre. After Judge Chou Chan-chun, who was originally assigned the trial, outraged Chen's opponents by releasing him from pre-trial detention, Chou was inspired to withdraw from the case, freeing the court to belatedly transfer it to a judge with a different outlook who was already in charge of prosecuting Chen's wife. That judge, Tsai Shou-hsun, had first come to public attention when, prior to the 2008 presidential election campaign, he acquitted Ma, the former KMT chairman and Taipei mayor, of corruption. Tsai promptly cancelled Chen's pre-trial release and repeatedly rejected subsequent release applications.
The district court's unusual transfer of the case to Tsai and his repeated denials of pre-trial release to Chen raised substantial constitutional questions. Taiwan's distinguished constitutional court, the Council of Grand Justices, whose interpretations have done so much to improve criminal justice, actually accepted a request for consideration of the constitutional questions and last March held a hearing to elicit the opinions of experts. Because of the urgency of Chen's case, a decision was expected in April.
If the council had upheld the constitutional challenge to transfer, it would have invalidated Chen's trial. The council might have also enhanced his prospects for release from detention. Even today, its decision could have a powerful impact. Yet no interpretation has been issued.
The trial court's reportedly 1,400-page judgment is not yet available. It is therefore impossible to comment on the handling of the many evidentiary problems involved. It is clear, however, that life sentences are automatically appealed against and that the Taipei High Court, unlike most Anglo-American appellate courts, will be obligated to conduct an entirely new trial of the facts, as well as the law. It will also have to again decide the apparently endless issues associated with Chen's continuing detention, which could last as long as the many years still required for the judicial process to run its course.
The Council of Grand Justices should facilitate this court's work by finally issuing its long-awaited interpretation. It is time for Taiwan's judicial system to confirm confidence in its legitimacy.
Jerome A. Cohen is co-director of NYU's US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. See www.usasialaw.org