Taiwan’s judicial ills blunt democratic gains


A poster calls for the release of former President Chen Shui-bian, Taipei on May 19, 2012.


Sam Yeh

TAIPEI, Taiwan — Calls from a former US district attorney and a ruling party heavyweight to release jailed former President Chen Shui-bian on medical parole have sparked a fresh round of debate about Taiwan’s antiquated judicial system.

Chen, who is serving a 17-year prison sentence for graft, has been diagnosed with depression, post-traumatic stress syndrome and heart problems. However, a team of doctors sent by the Justice Ministry found him fit to serve the remainder of his sentence.

The case, much like his contentious rule over the young democracy from 2000-2008, has polarized his enemies and supporters, many of whom say it was politically motivated by a system that has long been skewed in favor of the ruling nationalist Kuomintang party (KMT).

“We have been somewhat successful in winning political independence from the judiciary but the next step is reforming prosecutors, who can investigate in secret without oversight,” said Kao Jung-chih, director of Taiwan’s Judicial Reform Foundation.

“The real problem is with them. They have to listen to their bosses, who direct cases. The attorney general appoints the top persecutors and he is appointed by the president. There is a special investigations team in charge of Chen’s case, and they have been roundly criticized for prosecuting more green-camp cases than KMT cases.”

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In Taiwan’s fractured political landscape, the green camp refers to the independence-leaning Democratic Progressive Party, which Chen led when he broke the KMT, or blue camp’s, five-decade hold on power.

Chen’s supporters got a boost from Ramsey Clark’s visit, where the 84-year-old human rights activist urged President Ma Ying-jeou’s administration to act or risk being “seen as his murderer” if Chen dies in prison. Ramsey’s public rebuke of the government was soon followed by Taipei mayor, and KMT presidential nominee frontrunner Hau Lung-bin, breaking ranks by also calling for Chen to be released.

“The issue is not only a judicial problem, but also a social issue that involves the feelings of many pan-green supporters. Granting him a hospital stay would be a significant move to heal scars and bring social reconciliation,” Hau said, according to the Taipei Times.

But while the Chen drama has dominated headlines, experts say that more deep-seated and darker problems within the judiciary need to be addressed, particularly judges continuing to sentence defendants to death with scant material evidence, such as fingerprints, DNA, or worse still, confessions through torture by police.

Observers say Taiwanese courts rely mainly on confessions, statements by co-defendants' or evidence from police interrogations that are not recorded, despite a ban on relying on this type of evidence.

“It’s part of the culture in Taiwan. Judges presume that all defendants are guilty. You have to prove your innocence. If you can’t, then you’re guilty,” said Kao.

A rash of spotty cases has highlighted the problems. In 1997, a Taiwanese soldier was executed for murdering and raping a 5-year-old girl on the back of a failed lie detector test and a confession. But under pressure from his family, investigators reopened the case in 2010 and found that he had been tortured by investigators. Another man, with a history of sexual crimes has since been indicted.

In another case, a defendant has been detained for 24 years, been retried 11 times and sentenced to death despite two prosecutors and 10 police officers being punished for using torture to obtain confessions.

But perhaps the most egregious of them all relates to the "Hsichih Trio," who were sentenced to death for a brutal robbery and murder of a couple in the outskirts of Taipei in 1991.

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The defendants later recanted their confessions, claiming torture by police, which they say included being hung upside down and water-boarded with urine, being made to sit on blocks of ice, shocked with cattle prods and beaten for hours at a time.

Police have denied the tortures took place.

Taiwanese-American forensic scientist Henry Lee, famous from the O.J. Simpson trial, was brought to Taiwan by the defense to conduct a crime scene reconstruction and appear in court. His report concluded through blood splatter and reconstruction analysis that the three could not have possibly been in the room at the same time as their joint confessions suggested without leaving physical evidence.

During the trio’s 13th retrial held in late 2010, the High Court ruled the three were not guilty, in large part due to Lee’s testimony.

In a normal world, the case would have ended there. But prosecutors appealed the verdict, and in yet another retrial earlier this year, asked the court to throw out Lee’s testimony as he isn’t registered with the government-run forensic lab.

“Prosecutors act like civil servants in the way they follow procedures. They are afraid to be criticized for being soft so they continue to appeal and appeal and then appeal again,” said Kao.

Ironically, Lee was motivated to leave Taiwan as a police captain and study forensic science in the US because of his dissatisfaction with the number of crimes solved through forced confessions and torture.

More ironic still, was the court’s decision to hear testimony from a lead forensic scientist, who also headed up the lab work on the botched investigation into the air force serviceman who was wrongly executed in 1997.

A number of international human rights groups and a former UN special rapporteur on torture have raised serious concerns about Taiwan’s use of the death penalty, pointing to instances of torture, long detentions and violations of the right to a fair trial.

However, a new law, which came into effect last year, could bring some relief. The Speedy Verdict Law limits the time a defendant can be held without a final verdict to eight years and the number of times prosecutors may appeal after a defendant has been found not guilty.

“With the Speedy Law, if you have been found not guilty three times by the courts then prosecutors can’t appeal. If the Trio is found not guilty, they will not be able to appeal and the case will be closed. It’s a much needed step in Taiwan’s continued democratization,” said Kao.

The Hsichih Trio are expecting a verdict from a Taipei court next week.