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What has gone wrong
with justice in Taiwan?
By Lin Chia-ho ªL¨Î©M
At the end of World War I, the autocratic rule of the German Kaiser came to an
end, and Germany¡¦s first democratic republic ¡X the Weimer Republic ¡X was
established. Those who are familiar with the history of the Weimar Republic know
that it was ¡§a republic without republicans.¡¨ Above all, representatives of the
state machinery ¡X civil servants, military personnel and judges ¡X were lacking
in democratic credentials. They were for the most part leftovers from the old
regime, and some of them did not like the idea of freedom. The Weimar Republic¡¦s
judiciary was widely condemned as political and many historians take the same
view.
Judges under the Weimar Republic handled cases according to their own likes and
dislikes. Defendants with whom they sympathized were let off lightly, but when
it came to someone a judge disliked the law was often strictly interpreted and
the harshest penalty imposed.
Ironically, it was judicial independence and abstract legal concepts that
provided those judges with the ability to abuse their power and a fig leaf to
cover their abuses. Although the Weimar Republic had constitutional protections;
the problem was that its judges did not apply them equally to allies and
opponents. In effect, this was a kind of institutional state violence.
It would be unfair to say that the judiciary in Taiwan today is run by the
Chinese Nationalist Party (KMT), so the crucial problem is not one of political
control or direction of the judiciary. Nevertheless, it is hard not to think of
the Weimar Republic and its politicized judiciary when one looks at the case of
former KMT legislator Diane Lee (§õ¼y¦w), who was found not guilty last week in an
appeal against corruption charges.
Knowing full well that someone who holds dual nationality is not allowed to hold
public office, Lee attacked others for doing so, despite retaining US
citizenship herself. Yet the court sought to justify its verdict by arguing that
Lee had no obligation to take the initiative in revealing her dual nationality.
The judges argued that possession of foreign nationality does not necessarily
conflict with loyalty to Taiwan and Lee had committed no fraud by carrying out
her professional duties, so there was no intention to defraud.
Here we have a case of someone who knew that what she was doing was forbidden by
law, and yet intentionally concealed the infringement and financially benefitted
in the process. What is that, if not fraud? Even if it is hard to establish the
crime of fraud in this case, was it right not to assign any blame or criticism?
In Berlin in 1922, journalist and theater critic Maximilian Harden, who was of
Jewish ancestry, was the victim of a violent assault that could easily have
killed him. In the ensuing trial, the judges repeatedly raised doubts about the
victim and ridiculed him, and finally they convicted the two assailants of the
relatively minor offence of bodily injury and imposed a very light sentence.
Reporter Kurt Tucholsky, who observed the trial, condemned the judges for their
handling of the case.
¡§That is not bad justice,¡¨ he wrote. ¡§That is not poor justice. That is not
justice at all ... Even the Balkans and South America will refuse to be compared
with this Germany.¡¨
Tucholsky warned his fellow Germans that complicity with would-be murderers
would eventually lead them down the path to ruin.
In Taiwan today, we see judges who depart from people¡¦s basic understanding of
justice and do all they can to absolve those who break the law of blame. These
judges would do well to heed the warning of the Weimar Republic¡¦s judicial
failures.
Lin Chia-ho is an assistant professor at National Chengchi University¡¦s
College of Law.
Translated by Julian Clegg
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