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Courts must heed
people’s wishes
By Huang Di-ying 黃帝穎
In the early hours of Nov. 4, 2008, prosecutors raided Yunlin County
Commissioner Su Chih-fen’s (蘇治芬) residence and arrested her on suspicion of
corruption. However, she was found not guilty in her first and second trials,
and received a final not-guilty verdict in her third trial in the Supreme Court.
Nevertheless, prosecutors, who contravened the principle of proportionality in
arresting Su without having issued a court summons, seem to have got away with
it.
Last year, the Liberty Times, (the Taipei Times’ sister newspaper), published a
table showing cases in which members or associates of the Democratic Progressive
Party (DPP) have been charged and found not guilty.
The table listed 14 people: former Nantou County commissioner Peng Pai-hsien
(彭百顯), former Tainan mayor Hsu Tain-tsair (許添財), former National Security
Council secretary-general Chiou I-jen (邱義仁), former deputy foreign minister
Michael Kau (高英茂), former National Science Council deputy minister Hsieh
Ching-chih (謝清志), former National Palace Museum director Shih Shou-chien (石守謙),
former vice president Annette Lu (呂秀蓮), former premier Yu Shyi-kun (游錫堃), former
Tainan deputy mayor Hsu Yang-ming (許陽明), former presidential office deputy
secretary-general Chen Che-nan (陳哲男), former director of the Kaohsiung Bureau of
Rapid Transit Systems and deputy minister of Transportation and Communications
Chou Li-liang (周禮良), DPP Legislator Huang Wei-cher (黃偉哲) and former DPP
legislator Wu Ming-min (吳明敏).
All of them, as well as former presidential adviser Wu Li-pei (吳澧培), were
indicted by prosecutors but found not guilty in a court of law, just like Su.
How is it that prosecutors, with the connivance of several media outlets, can
set up these DPP politicians by portraying them as a corrupt clique, and yet so
many of the people they accuse end up being found not guilty?
Have the media that portrayed these people as corrupt put any effort into
restoring their reputations?
Have prosecutors who brought these prosecutions apologized to the victims or to
the public?
Supreme Court Precedent No. 1785, which was set in 1965, maintains that the
crime of prosecution in abuse of authority (濫權起訴罪) is one that infringes on the
state’s judicial authority.
To put it simply, the definition adopted by the court protected prosecutors by
saying that members of the public who were subject to prosecutions in abuse of
authority were not “victims.”
As a result of that definition, people who have been tormented and victimized by
the judicial process, yet eventually cleared, cannot take out a private
prosecution or sue the prosecutors who abused their authority.
The Council of Grand Justices has found a comparable anachronistic legal opinion
to be unconstitutional.
Referring to the Code of Criminal Procedure (刑事訴訟法) and the question of
adultery, constitutional interpretation No. 569 says: “While Article 321 of the
Code places a restriction on a person’s right to initiate private prosecution
against his/her spouse, it does not prevent him/her from initiating a legally
private prosecution against the one who commits jointly with his/her spouse an
offense indictable only upon complaint.”
For this reason, the grand justices’ interpretation rules that Supreme Court
precedents to the effect that “a person is not allowed to institute private
prosecution against the one who commits jointly with his/her spouse an offense
indictable only upon complaint … are contrary to the purpose of the
Constitution.”
In other words, precedents that restrict people’s right to litigation without
any legal basis are unconstitutional and therefore null and void.
In view of this, the courts should abandon the retrograde notion that malicious
prosecutions have no victims. They should recognize the absurd situation where
prosecutors have authority without responsibility.
One thing that courts can do is to a give a proper hearing to cases lodged by
victims seeking redress.
On Monday last week, an alliance of judicial victims issued a declaration
calling for a “metamorphosis” of Taiwan’s system of prosecution.
The declaration stated that the purpose of resisting prosecutors who abuse their
authority is to “break open the cocoon” of prosecutors who work for political
ends under the guise of carrying out judicial duties, and to complete the
process of depoliticizing the judiciary and restoring justice to the public.
This is what most people in Taiwan want to see, and the courts should take heed
and respond to this call for justice.
Huang Di-ying is a lawyer.
Translated by Julian Clegg
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