20120830 Legal system’s standards untenable

Legal system’s standards untenable

By Kao Jung-chih 高榮志

It has been more than 400 days since the Taiwan High Prosecutors’ Office posthumously acquitted Chiang Kuo-ching (江國慶), wrongfully executed in 1997 after being convicted of sexually abusing and murdering a five-year-old girl. The Taipei District Prosecutors’ Office has since ruled that it will not prosecute those responsible for Chiang’s wrongful prosecution, including former minister of national defense Chen Chao-min (陳肇敏). The legal argument for this case revolves around three points:

The first is whether the offenses remain within their statute of limitations’ periods of prescription. Serious crimes warrant a long period of prescription, minor crimes a shorter one. According to the Taiwan High Prosecutors’ Office, there was no direct causal relationship between Chiang’s execution and Chen’s actions, and it is debatable whether the principle of omission, or failure to act — which according to Article 15 of the Criminal Code is “equal to having caused the occurrence of the result by a positive act” — is applicable.

However, Chiang’s confession was extracted deliberately through the use of torture, imprisonment, falsehoods and methods such as making him observe the little girl’s autopsy. A confession is difficult to overturn, even in the current criminal judicial conditions. Therefore, under the legal pragmatism and social climate of the time when Chiang’s case took place, and especially in a military court with its emphasis on procedural rigor and swift closure, obtaining a confession was tantamount to securing a death sentence. Given that, Chen and the others were clearly guilty of breach of duty.

Second, there is the possibility of applying Article 125 of the Code, pertaining to public officials overstepping their authority to seek a prosecution that ends in a death. Military prosecutors and judges have the authority to prosecute, so this does not apply to them, but Chen and the others did not. Applying Article 31 of the Code, which concerns a person who “joins, solicits or aids another in an offense,” Chan and the others can at the very least be considered accessories.

Finally, Article 302 of the Code deals with taking people into custody or restricting their freedom without having the authority to do so in situations where death results. From the very start of the process, there were procedural irregularities in Chiang’s arrest, and he was imprisoned on dubious pretexts and forced to confess through torture and misinformation. Given the nature of the crime, the confession was as good as a death sentence. How can the Taipei District Prosecutors’ Office say there was absolutely no causal relationship between the actions of the accused and Chiang’s execution?

When the Taiwan High Prosecutors’ Office ruled on these three crimes, it said the statute of limitations had not expired. It was certainly not the case that Chen and the others could not be prosecuted. There is room for interpretation when dealing with the law, and the Taipei District Court has repeatedly maintained that it will not prosecute. Perhaps different standards of prosecution are being applied.

It is always possible to offer varying arguments when different interpretations are made of legal points, but a situation in which prosecutors apply different standards — one being strict, the other relaxed — is untenable.

Even more dubious is the way the different aspects of the case were dealt with in isolation of each other. Junior civil servants could only be accused of minor offenses, for which the period of prescription had already expired. Senior officials did not know what was going on, so they had no criminal intent. The military prosecutors and judges were only involved in the later stages of the case, so they were not in any way involved in the earlier abuse and torture. Each aspect of responsibility was clearly defined and allocated, and so it was impossible to establish responsibility for breach of duty, overstepping one’s authority, or causal relationships. In the end, all that was established was the actions of the victim. The narratives of the perpetrators’ actions were lost.

Foreign correspondents interested in Taiwan often ask why the judicial system is still a mess, given Taiwan’s success in democratic and economic terms.

There is a stock answer to this: It was not too long ago that the country emerged from under martial law, and the roles of judges and prosecutors are not yet clearly defined; lawyers and legal professionals are still deferential; judges remain powerful; and the prevailing culture cannot yet guarantee human rights. The Chiang Kuo-ching case is so convoluted it could be a case study for judges’ examination questions. One is left wondering when Taiwan will be able to give those foreign correspondents an answer without a trace of shame or embarrassment.

Kao Jung-chih is a lawyer and director of the office of the Judicial Reform Foundation.

Translated by Paul Cooper