20110720 EDITORIAL: Missing the big picture

EDITORIAL: Missing the big picture

The public is up in arms at the news that Banciao District Court Judge Lu Chun-chieh (盧軍傑) last Wednesday ordered the release of taxi driver Hsieh Tung-hsien (謝東憲), who is facing charges of sexually assaulting a female Japanese exchange student, on NT$50,000 bail. A quarter-million netizens have called for Lu’s head, branding him a “dinosaur judge” as the “White Rose” movement launched another attack on the judiciary.

The outrage, born out of compassion for the alleged victim and frustration at the judge’s decision to release Hsieh, who then went missing for several days before being rearrested on Sunday, quickly caused a massive reaction. While the public’s anger is justified, is it right that it be directed at the judge?

The decision on whether to detain the accused during the course of the investigation is based not on guilt or innocence, but on whether restricting the accused’s freedom of movement would ensure public safety and allow the investigation and trial to proceed. Given the presumption of innocence, a judge needs to be very cautious about ordering the detention of the accused. According to the Council of Grand Justices’ Interpretation No. 665, the accused cannot be detained based on the seriousness of the crime alone; there must also be the possibility they will try to flee, destroy evidence or re-offend. The interpretation was made to protect the rights of the accused.

Several things have been overlooked in this case: first, the role of the prosecution. The prosecution merely ticked the box to indicate the serious nature of the crime as cause for detention, but failed to attend the hearing in person. Neither did the prosecution specify any potential flight risk, mention any police recommendation for preventive detention or even produce any evidence that Hsieh had a previous record of sexual assault or harassment.

These failures resulted from the negligence of the prosecution, not the judge. A judge has to weigh each individual case, balancing public safety against the rights of the individual.

The prosecution’s failure to offer any cause for detention beyond the seriousness of the crime went against the judicial interpretation, which was careless of them. However, the accused is a taxi driver and is likely to come into contact with women — it is certainly not inconceivable that he might re-offend and this should have been given careful consideration. The judge should have asked the prosecution to make the appropriate amendments to the documents and resubmit them. That he did not was careless. A bit more empathy on the part of the judge might have been wise.

Then there is public opinion. Here, the media are firmly on the side of the alleged victim and have already decided the accused is guilty. Also, netizens have unleashed their fury on the judge, without fully comprehending the facts about the detention process.

The White Rose movement’s ire was directed at the government, but it seems to have had quite some influence in getting judges to eventually rescind Hsieh’s bail order. It is difficult to tell whether the eventual decision to detain Hsieh was because of public opinion or the result of an independent reappraisal.

It is true that an outraged public has great influence, but it does not always see things as they are. The public has lost confidence in the judiciary and both judges and prosecutors are keen to push the blame on the other to escape the heat, often bending to public pressure. Judges and prosecutors are both part of the judicial system and should take responsibility accordingly.

Judicial bodies should stop looking to public pressure to drive reform and improve the system themselves, so that the practice of law is not distorted by populism and the public can rest assured that the system is delivering it the justice it expects.