Tue, Dec 16, 2008 page8

• Judges’ hamfisted take on the law

  • By Wu Ching -chin 吳景欽
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  Former Bureau of Investigation director Yeh Sheng-mao (葉盛茂) was sentenced to 10 years in prison on Dec. 4. Prosecutors charged Yeh with leaking non-military state secrets and sought a sentence of two years and six months for informing former president Chen Shui-bian (陳水扁) about details of investigations into alleged money laundering by Chen and members of his family.

  Reaching their verdict in the first trial, judges at the Taipei District Court found Yeh guilty of not only the original charge, but also five other charges, including influence peddling on behalf of Chen and forgery, and handed down a harsh sentence of 10, saying that Yeh had shown flagrant disregard for the law.

  The Taipei District Court’s handling of Yeh’s case was remarkable not only for its speed, but also because the court kept referring to two other cases — Chen’s alleged abuse of the state affairs fund and his alleged money laundering — that were still under investigation. The judges even made accusations related to the Chen case in the written verdict, which makes one wonder who was really on trial on this occasion — Yeh or Chen. The fact that the judges used a case where prosecutors had yet to make any indictments in this way makes it necessary to ask whether they exceeded their powers by convicting the defendant on charges other than those originally brought against him.

  In principle, a court should not try a defendant in cases where prosecutors have not made any indictments. This, the principle of “no trial without complaint,” is part of criminal procedure and an important part of the separation of powers. This is something that every student of law must know, and judges are of course aware of it. The question then arises of whether the judges exceeded their powers by including matters arising from another case in their verdict. If there is any justification for the judgment, it is to be found in Article 267 of the Code of Criminal Procedure (刑事訴訟法), which reads: “If part of the facts of a crime is prosecuted by a public prosecutor, all such facts are considered to be included.”

  According to this clause, if Yeh’s act of providing confidential information was a matter not just of leaking secrets, but also of influence peddling or other illegal behavior, so that several offenses were committed concurrently, then the judges could extend the scope of the trial to include these other offenses in line with the principle of indivisibility.

  This latter principle is enshrined in law, and it is often invoked in trials under our judicial system. As such, it is a tenet with which any legal professional must be conversant. On this occasion, however, the use of this principle has led to a verdict that many people find hard to understand or accept. How could the judges follow the law, and yet arrive at such a questionable result?

  Interpretation and application of the law is the very nature of a judge’s work. If, as is sometimes the case, a judge’s final verdict is at odds with what the common person might expect, it does not necessarily mean that the judgment is contrary to the law. However, judges must not forget why the law exists in the first place.

  Take for example the principle of “no trial without complaint.” The law stipulates that judges should not pass judgment on matters outside the scope of the case in hand. The purpose of this restriction is to define the scope of the case, so that the defendant is able to exercise his or her right to formulate a defense within those parameters. In placing such a restriction on the judges, the principle of “no trial without complaint” prevents arbitrary decisions by the judiciary. No legal interpretation or application may contravene this overriding principle, lest we lose sight of the fact that the law should serve humanity. Taiwan’s legal system is not a count system. Rather, it retains objective indivisibility, allowing judges to order prosecutors to investigate additional matters not included in the original charges. At the same time, it protects a defendant’s right to formulate a defense. In the case against Yeh in the Taipei District Court, this meant that witnesses could be summoned to give testimony regarding allegations of influence peddling, and, this being the case, the judges’ conduct ought to be justifiable and not suspect.

  However, the reasoning given for the verdict in this case seems to rest largely on the alleged criminal activity of persons other than those accused in this case. No indictment had yet been lodged with regard to these matters, so of course the facts had not yet been judged in court.

  This means that the judges in the Yeh case could not know the full facts of the other matters, but only parts of the investigation and rumors. At the same time, the accused in this case — Yeh — was reduced to a supporting role. The charge of influence peddling and related charges against Yeh are derived from the case against Chen, in which no indictment had yet been made. The judges in Yeh’s case took the view that Yeh was an accomplice in the Chen case.

  Under such circumstances, the accused had no chance to formulate a defense. Besides, the judges were in effect prejudging the other case, which violates the presumption of innocence until proven guilty. Such action by the judges can hardly be justified under the aforementioned principle of indivisibility. The judges’ action in extending a case about leaking state secrets to include several charges arising from another case in which no formal charges had been made is precisely the kind of judicial excess that the principle of “no trial without charge” is intended to prevent.

  Even if the evidence of criminal activity against the accused in the other case is thought to be conclusive, that case can only come to a trial after formal charges have been filed. The judges in Yeh’s case should not have overstepped their authority by meddling in the Chen case, and that is surely what the judges did when, in their verdict, they judged that the defendant — Yeh — had flouted the law, and handed down such a heavy sentence on that basis.

  One way to better protect defendants’ rights would be to amend the principle of indivisibility of indictment stipulated in the Code of Criminal Procedure and adopt a count system. That may or may not happen. What is more important is for judges to be aware that they are supposed to hear cases impartially and objectively.

  Wu Ching-chin is an assistant professor in the Department of Financial and Economic Law at Alethia University.

  TRANSLATED BY JULIAN CLEGG
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