Judicial power comes from the idea that sovereignty rests with the people and that courts must uphold the right to institute legal proceedings. Judges are guardians of the public’s rights and should abide by the Constitution and the law to protect the public’s rights. Decisions based on violations of legal procedure are illegitimate. The verdict in former president Chen Shui-bian’s (陳水扁) corruption trial is therefore invalid, violating constitutional articles 80 and 16 and constitutional interpretation No. 530.
The legal principle of a “legally competent judge” is at the heart of Article 80, which prescribes a basis for ensuring a fair court. The concept of a legally competent judge is key to ensuring fairness when implementing Article 16, which ensures the right to institute legal proceedings as stated in articles 80 and 16 and in constitutional interpretation No. 530. Presiding Judge Tsai Shou-hsun (蔡守訓) was not a legally competent judge for the Chen case.
The verdict also violates constitutional Article 8 and constitutional interpretations No. 384 and 392. Article 8 states that “no person shall be tried or punished otherwise than by a law court in accordance with the procedure prescribed by law.”
The term “competent court” referred to in constitutional interpretations No. 384 and 392 refers to a “tribunal composed of a judge or a panel of judges empowered to try cases.”
Legally competent judges can hear trials. However, Tsai was replaced by his superiors during the Chen trial and lacked the judicial power to preside over the case and the power to detain him.
The verdict also breaches constitutional interpretation No. 653. Constitutional Article 16 protects the right to institute legal proceedings. Citizens have the right to request a fair trial based on legitimate legal procedures, and no one should be deprived of this. These principles are explained in constitutional interpretation No. 653. While Chen is a former president, his guarantees to legitimate legal procedure and the right of personal freedom should be the same as any other citizen’s and may not be ignored or made stricter for him.
Additionally, the verdict violates Article 6 of the Code of Criminal Procedure that lists regulations for combining cases subject to the jurisdiction of several courts at the same level under one court. Based on the spirit of these regulations, cases in courts at the same level can be combined only following a ruling to this end. The change of judge during Chen’s trial was not based on such a ruling and breached the law.
Moreover, the verdict violates constitutional articles 78, 171, 172 and 173; Article 5, Paragraph 4 of the Additional Articles to the Constitution; and constitutional interpretations Nos. 371, 572 and 590. Consolidated trials are aimed at preventing disagreements over decisions and making proceedings more economical, but are mostly the result of the accused agreeing to a consolidated trial. If the accused disagrees, he must not be deprived of his right to a legally competent judge.
In terms of disputes over the constitutionality of a case, judges should actively seek and wait for a constitutional interpretation instead of relying on their own opinions to determine whether something is unconstitutional.
Finally, the verdict violates constitutional interpretation No. 418, which states: “Article 16 of the Constitution guarantees the people the right to bring a lawsuit and the intent is to ensure that the people have the right to initiate lawsuits in accordance with the legal procedures and the right to a fair trial.”
Justice is not just about someone being pronounced guilty or not guilty — proper procedures should be followed and upheld.
Hung Ying-hua is a division chief judge in the Shilin District Court.
TRANSLATED BY DREW CAMERON
Source: Taipei Times - Editorials 2009/09/17
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