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Judiciary biased against the poor
By Lin Feng-jeng 林峯正
Wednesday, Feb 24, 2010, Page 8
Recent events have made the Control Yuan a focus of attention. The government
watchdog did not pass a motion to impeach Prosecutor-General Chen Tsung-ming
(陳聰明) when it was first proposed, but did so the second time, following a wave
of criticism from various quarters.
The Control Yuan then called on Chen’s immediate superiors to promptly carry out
the impeachment, but he resigned before they could do so.
Also last month, the Control Yuan endorsed a report on an investigation headed
by its Control Yuan members Fuldien Li (李復甸) and Shen Mei-chen (沈美真) that found
that the Judicial Yuan failed to uphold the public’s constitutional right to
institute legal proceedings.
The report said that the Judicial Yuan allowed the high courts to misuse Article
361, Paragraph 2 of the Code of Criminal Procedure (刑事訴訟法) to refuse a
defendant’s right to appeal on the pretext that their applications did not
present specific grounds. Perhaps the issue is not as eye-catching or dramatic
as the prosecutor-general’s impeachment, but it is at least as important, if not
more so, in its implications for the ordinary citizen.
Nearly three years ago, the Judicial Yuan proposed an amendment to Article 361
that would require judicial appeals by prosecutors or defendants to be
accompanied by “specific grounds.”
The stated purpose of the proposal was to stop litigation getting bogged down by
unreasonable appeals. Legislators and representatives of the Ministry of Justice
said they were not opposed to amending the law, but they questioned whether some
judges might arbitrarily reject appeals.
Answering a question from a legislator, the director-general of the Judicial
Yuan’s Criminal Department said that, because people did not always have lawyers
representing them, judges would review such cases only as a matter of course and
that the requirement to submit “specific grounds” for appeal in written form was
more a matter of educational guidance than anything else.
This exchange gives the impression that the purpose of amending the article in
question was to prompt appellants to provide grounds for their appeals as early
as possible, and that, in consideration of the fact that most defendants have no
lawyer, their appeals would not be arbitrarily rejected in cases where no
specific grounds were included.
The amendment passed and came into effect in July 2007. Statistics from the
Judicial Yuan show that the number of appeals rejected as unlawful averaged less
than 200 per year between 1999 and 2007, but the number shot up to 3,470 in 2008
and 4,924 for the first 11 months of last year. The 2009 figure accounts for one
quarter of all legal cases that were wound up in the same period.
The number of appeals rejected on these grounds soared to 25 times the earlier
figure. It is also significant that 95 percent of defendants in these cases did
not, or could not afford to, appoint a lawyer.
The authors of the Control Yuan investigative report said the practical result
of the amendment has been that the right to appeal has been excessively
curtailed.
They concluded that this may contravene the principle of legal equality
enshrined in Article 7 of the Constitution, the right to due process stated in
Article 8, the principle of proportionality upheld by Article 23, and Article
16’s protection of the right to institute proceedings. The report calls on the
Judicial Yuan to review the matter and apply to the Constitutional Court for an
interpretation.
When originally proposed, the Judicial Yuan claimed the amendment was necessary
to stop some appellants from abusing the judicial process. The facts, however,
indicate that judges have used the new regulations to weed out certain cases.
As soon as this mechanism was set in motion, great numbers of cases were simply
wiped off the board and the vast majority of people who have been denied leave
to appeal are those who do not have the assistance of a lawyer.
How can it be called justice when officialdom treats the underprivileged like
this?
The Judicial Reform Foundation (民間司法改革基金會) has complained to the Judicial Yuan
both publicly and privately, but the answer on each occasion has been that the
Supreme Court also supports the way the high courts have been handling such
cases.
Bureaucrats back one another up, just as they always have. Finally, we were
forced to petition the Control Yuan to investigate the matter.
Saying one thing but doing another, the Judicial Yuan has acted like a gang of
fraudsters. How can a judiciary that does not keep its word be expected to
uphold people’s right to due process?
How can the Judicial Yuan have the nerve to declare that the judiciary serves
the public?
The amendment was a scam, but what can we do about it?
Lin Feng-jeng is a lawyer and executive director of the
Judicial Reform Foundation.
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