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Chen Judges Bungle Their Chance

Author: Jerome A. Cohen, Adjunct Senior Fellow for Asia Studies
January 8, 2009
South China Morning Post

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When analysing the experience of the US Supreme Court, the late Charles Evans Hughes (chief justice 1930-39) commented: "The gravest wounds are self-inflicted." Taiwan's courts should reflect on that wisdom. The prosecution of former president Chen Shui-bian has not even come to trial. Yet his judges have already bungled the historic opportunity Chen's case presents for the judiciary to confirm its independence, impartiality and competence.

The vibrant democracy for which so many in Taiwan have struggled is in trouble. Corruption threatens the integrity of the political system. This cancer cannot be controlled without a credible, fair and transparent judicial system to enforce the law.

Following Chen's November 11 arrest, despite the deep political divisions and partisan suspicions of Taiwanese society, the prosecution's detailed allegations of massive corruption by Chen, his family and colleagues had prepared the public to accept the prospect of their guilt and punishment.

Their convictions after proceedings perceived to be fair would vindicate the values of clean government, deter potential wrongdoers and heighten confidence in courts that began to free themselves from decades of authoritarian Kuomintang government fewer than 20 years ago.

Unfortunately, recent court proceedings have mocked that promise. Unless some unexpected, bold action restores public confidence, convictions of Chen and his associates will enhance popular cynicism and deny the courts the broad support required by any successful judiciary.

What happened? Chinese have traditionally emphasised substantive criminal law - guilt or innocence - rather than procedure. Yet, recent events, reflecting Taiwan's gradual transition from an inquisitorial to an adversarial system, focused attention on two related sets of criminal process issues: pre-trial detention and the merger of separate prosecutions.

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