Article 14(1) of the International Covenant on Civil and Political Rights states that criminal suspects are entitled to a “competent, independent and impartial tribunal established by law,” while Article 14(3) states that a defendant should “have adequate time and facilities for the preparation of his defense and to communicate with counsel of his own choosing.”
On the basis of these articles and the arguments of members of Taiwan’s legal community, there is now a reasonable suspicion that former president Chen Shui-bian’s (陳水扁) entitlements under the covenant have been compromised.
We have already expressed concern at the extraordinary decision of the Taipei District Court to remove a judge hearing one of Chen’s cases in a streamlining of legal hearings involving the defendant.
This action has been described as ordinary court procedure, but the decision resulted in a new judge detaining Chen on substantially identical arguments from the prosecution and followed pressure from government legislators — including Chinese Nationalist Party (KMT) Legislator Chiu Yi (邱毅), a convicted felon and member of the legislative committee dealing with judicial matters — and took place more than a week after ordinary procedure might have dealt with the matter, according to the Judicial Reform Foundation.
Chiu Yi’s threat to impeach the original judge after he released Chen from custody was not, to the best of our knowledge, repudiated by senior KMT officials, government officials or the justice minister — a stunning silence and a most regrettable development.
These actions have disturbed respected members of Taiwan’s legal and academic community, including the president of the Judicial Reform Foundation and others with judicial responsibilities and experience.
Yesterday’s news, however, that prosecutors have ignored the advice of the Taipei Bar Association and will investigate Chen’s lawyer, Cheng Wen-lung (鄭文龍) — based in part on tapes of his conversations with the president in custody — indicates the case is firming in a direction that augurs farce.
At the same time, the court has taken no substantial action over the consistent leaking of prosecutorial data to the media. That all this was taking place even as the authorities monitored client-counsel communication amounts to a violation of the defendant’s right to “adequate … facilities for the preparation of his defense.”
If a court fails to protect the right of a defendant to a fair trial, then the tragedy is everyone’s. When that defendant is a former head of a state, however, judicial misconduct or the reasonable perception thereof would bring the entire system into disrepute and threaten to destroy confidence in verdicts of cases with political overtones, if not verdicts in general.
That is to say, if the prosecution of the former president continues in this manner, then widespread fears of a reversion to a martial law-style juridical environment risk vindication. And if a large proportion of the Taiwanese population has reason to believe that the courts are willing to intimidate defense counsel and cannot ensure impartiality, then the political and social consequences could be dire.
There have been so many bizarre, inexplicable and chilling incidents in Chen’s cases to date that the immediate preparation of a submission to the International Commission of Jurists (ICJ) appears justified, if not essential. There is now sufficient prima facie evidence of harassment of jurists, targeting of lawyers and compromised judicial independence to satisfy the criteria for ICJ intervention.
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