20130125 Judge Hong Yin-hua says Chen Shui-bian’s conviction was illegal

Judge Hong Yin-hua says Chen Shui-bian’s conviction was illegal

January 24, 2013 By: Michael Richardson

http://www.examiner.com/article/judge-hong-yin-hua-says-chen-shui-bian-s-conviction-was-illegal

Judge Hong Yin-hua says Chen Shui-bian's trial was illegal
Credits: Mary Loan

Taiwan Political Prisoner Report, Jan. 24, 2013. Su-Lin District Court Judge Hong Yin-hua, in Taipei, demonstrated personal courage and integrity by coming forward in public with criticism of the conviction of former President Chen Shui-bian in remarks published in the Liberty Times. In the Republic of China in-exile, jury trials are banned and one’s fate in court is left to a judge. Judge Hong says the selection of judges in Chen’s case was “illegal” thus Chen’s conviction was invalid.

Chen Shui-bian was convicted in 2009 for alleged corruption following a controversial trial marred by the changing of judges and other procedural irregularities. Critics of the trial claim that the prosecution of Chen was politically motivated and the outcome was planned in advance.

Judge Hong made her declaration about judicial selection last year and suffered being stripped of her role as Chief Justice for her remarks. Judge Hong’s tenure protected her from being removed from the bench by an unhappy Ma Ying-jeou, but her duties were restricted following her public criticism of Chen’s trial.

Risking another reprimand, Judge Hong agreed to an interview on Chen Shui-bian’s case.

Judge Hong got right to the point: “In this case the judge removal was an illegal action thus the trial was totally illegal. I do not agree with the judgment rendered because it was political and not in line with Taiwan justice.”

“The case is definitely not justified by the court process and the ruling outcome,” said Judge Hong. “According to the laws of Taiwan, the courts are required to follow the law. But in this case the judge was supposed to be randomly selected. But after they picked a judge from the list, they changed the judge from one to another judge with no excuse.”

“This case also violates basic concepts of justice. There are several reasons. One is the Supreme Court should not sentence directly. In this case the Supreme Court made the sentence. Secondly, the court charged that President Chen used his influence to make a deal complete. Of course, under the law it is not a responsibility for the president to have such authority. But they argue that he used his influence to favor the deal. So that is the reason they charged him. It violates the Constitution and it violates many cases before in the case law,” explained Judge Hong.

The judge was asked about the midnight court sessions in Chen Shui-bian’s trial: “I have no direct information about court in the middle of the night. But what I have heard, the main judge ruling in the case is not very friendly to President Chen, kind of hostile. Under the law, if there is night court it must be approved by the person, in this case President Chen. I don’t know if they got approval from President Chen or not. From the cases I have handled, if some of them extended into the night I would ask the person’s approval in order to have a session at night, otherwise I would continue the next day.”

“Taiwan’s law requires, similar to other countries, that judicial investigation be carried out in good faith and that the courts are in good condition.”

“After I spoke out about the injustice of President Chen’s case, the court officials’ office wrote an administrative rule taking away my position of chief judge. I lost my title,” said Judge Hong.

“It is difficult to say if a jury system could be more fair. Justice can be served by judges in most of the cases,” said Judge Hong. “However, when they have biased minds from the start, then that is a problem. Historically, the change of a judge in a case does not happen, this case is one of very few. The rest of them were to satisfy the court. President Chen’s case, an oddity, is a perfect case to show injustice.”

Judge Hong was critical of the prosecutors: “They tried to put President Chen in jail before trial. The first judge, Chou Chan-chun, found Chen not guilty, but the prosecution can appeal. In a political case in Taiwan, the prosecutors appeal many times. Before, in a corruption case, the trial court directly passes sentence. In Chen’s first trial, they didn’t want to accept the judge’s decision, so prosecutors appealed to the upper court to get the decision they wanted, rather than accept the ruling from the very beginning.”

“President Chen only went to jail on one charge, the rest of the times Chen was found not guilty but the prosecutors appealed. So Chen’s case is brought in and out again, in and out again. The prosecutors try again and again,” complained Judge Hong.

“The recantation by Jeffery Koo, Jr. constitutes new evidence and could be used to reopen the case. But so far, the court hasn’t done anything.” Judge Hong insisted, “According to law, the case should be reopened.”

“Under the rule of law the sentence given to Chen Shui-bian is invalid. The prosecutors, to put President Chen in jail, argued that Chen had real influence to complete the deal, but that type of thing is not the president’s responsibility so the court should not have put him in jail. The argument for Chen’s sentence is not well justified,” said Judge Hong. “The sentence should be vacated according to the law for two reasons.

“One, the judge that passed sentence, according to the laws of jurisdiction, should be the one who was replaced in this case. The only judge with jurisdiction was the first one who was randomly selected. This violates due process and the requirements of justice.”

“Also, President Chen should only have been charged for use of his real influence. According to the law, President Chen has to have a duty or responsibility to be involved with this type of case. The deal had nothing to do with President Chen. So according to the law and Constitution, this case was wrongly decided. The presidential responsibility has to be clearly defined.”

Continuing on with her critique, Judge Hong said: “According to the case law, forty-five cases have been ruled upon by the Supreme Court as part of their official duties. Of them, only four cases have been sentences. Those four cases have been misjudged. The legal system should be based on responsibility. This matter [Chen’s case] should be vacated. The argument that Chen should be held accountable because he was powerful is not based on law.”

Judge Hong was also critical of the denial of medical parole to Chen Shui-bian: “According to Article 58, if the Justice Ministry cannot handle a person’s medical problems then they should be qualified for a medical parole. Right now the Justice Minister has said only persons dying, in their last moments, or in the final stage of cancer, will be allowed medical parole. This needs to be corrected by the Justice Ministry in every case. Under the existing law, President Chen should have medical parole.”