Taiwan 'truth' probe said to rape
justice By Laurence Eyton
TAIPEI - Taiwan politics is again in turmoil
after the opposition-dominated legislature, on August
24, passed a bill to set up a special committee to
investigate the March 19 assassination attempt on
President Chen Shui-bian. Chen was shot and received a
flesh wound to the stomach while traveling in a campaign
motorcade with his vice president, Annette Lu. The
following day he won the presidential election by the
narrowest of margins, some 30,000 votes out of 12
million cast.
The opposition, consisting of the
Chinese Nationalist Party (Kuomintang, or KMT) and the
People First Party (PFP) - and known generally as the
pan-blues after the traditional political colors of the
Chinese Nationalist movement - have long questioned the
shooting, suggesting that it might have been staged to
win a sympathy vote. Such evidence as the pan-blues have
presented for this assertion has been laughable,
consisting mainly of conspiracy theories hatched on the
Internet.
Chen himself has, however, been
frustrated with the progress of the investigation of the
shooting and the fact that, wacky as the theories might
be, the bitterness of the election campaign has
engendered an atmosphere in which people are prepared to
abandon logic and believe just about anything purely out
of political partisanship. Chen, predictably, wants the
sniping and the conspiracy theories put to rest.
The pan-blues have been trying to get some kind
of special inquiry into the shooting set up ever since
it occurred. For several months Chen resisted this,
claiming that the organs of the judiciary were perfectly
capable of investigating the matter - and in fact were
constitutionally the only agencies allowed to do so. But
in early July his frustration with the lack of progress
in the investigation - and sensitivity to pan-blue
rumors that this lack of progress was deliberate - led
Chen to consider how a committee might be set up in some
way to oversee the investigation.
Probably Chen
now wishes he had left well enough alone - for the
results of this about-face may well prove disastrous,
for the executive, the judiciary, the Taiwan
constitution, any chance of moving beyond the bitterness
surrounding the election, the rule of law, and Taiwan's
reputation as a liberal democracy.
The original
plan was, as Presidential Office deputy secretary
general James Huang said in July, "that a number of
prominent people join a non-official committee to
monitor" the investigative task force staffed by the
judiciary and the police.
The idea was that a
bunch of senior public figures, known for their
impartiality and integrity, should examine how the
investigation had been carried out to make sure that no
avenue had been neglected. The body could issue
recommendations to the judiciary but would have no power
to compel action. It would, however, be headed
preferably by the head of the Control Yuan, a branch of
government peculiar to Taiwan, functioning somewhat like
an ombudsman to investigate allegations of wrongdoing by
government officials.
The chairing of the
committee by the Control Yuan president was regarded as
useful, since it meant that any administrative flaw
discovered by the committee could easily be referred to
the Control Yuan for formal investigation. It was,
however, constitutionally controversial since no member
of the Control Yuan, including its chief, is supposed to
have any other work at all - a measure adopted to avoid
any conflict of interest.
The problem with such
a committee, as envisaged by the president and his
Democratic Progressive Party (DPP), was that it could
only really look into administrative questions. In other
words, it could ask if other branches of the bureaucracy
had followed correct procedures, but it could not
actually intervene in the investigation, since under the
constitution this was the exclusive prerogative of the
judiciary.
But this was not nearly enough to
satisfy the opposition. After all, its claim was not
that correct procedures had not been followed but that
the whole tenor of the investigation into the shooting
was wrong, in that the claim that it might have been
staged - for which they have yet to provide any
supporting evidence - had simply not been properly
considered.
To avoid claims of stacking a
committee in his own favor, the president eventually
decided to leave how the committee should be constituted
and what powers it should have in the lap of the
legislature, which was detailed to pass a special
statute establishing the committee and delimiting its
powers.
This was in itself arguably
unconstitutional, though at the time the statute was
being debated it was widely felt that if putting the
rancor and rumors concerning the shooting to rest was to
be at the expense of certain constitutional niceties,
then this was a price that could be paid.
This
was a big mistake. Leaving it to the legislature might
have been the only way to avoid charges of rigging the
committee, but the result has the potential for
constitutional chaos, severe damage to Taiwan's
reputation as a liberal democracy maintaining the rule
of law, almost unlimited political animosity, and even
civil unrest.
Contending versions of the statute
to establish the committee were put forward in the
legislature. Given the slight numerical superiority of
the pan-blues it is not surprising that their version of
the statute was passed.
The provisions of the
statute formally to establish the "March 19 Truth
Investigation Special Committee" mandated a 17-person
committee, the members to be chosen by the legislative
caucuses on a proportional-representation basis. This
means that the KMT would select five members, the PFP
four, the DPP (which is the biggest party in the
legislature but does not have a majority) six, the
DPP-allied Taiwan Solidarity Union (TSU) one and the
Alliance of Independent Legislators one. The committee,
as established, is therefore controlled by the
pan-blues.
While committee members are to be
appointed by the legislative caucuses, they are not
allowed to be legislators, or members of any government
agency or state-run business.
The powers of the
committee are sweeping. It can investigate anything that
five of its members agree is worth looking into. It can
summon anyone it chooses to appear before it, even the
president himself. Those summoned cannot claim executive
privilege. Nor, far more controversially, can they claim
anything else.
The statute has exempted the
committee from following the Code of Criminal Procedure,
which lays down the rights of a suspect or a witness in
a judicial proceeding. Basic rights such as that against
self-incrimination or detention without charge have been
suspended. Rights of confidentiality, as between a
doctor and patient, or lawyer and client, have also been
suspended, as have the provisions of both
national-security laws - meaning national security
cannot be invoked as a reason not to give certain
evidence - and commercial confidentiality.
The
committee will not prosecute cases itself but will hand
down indictments for ordinary prosecutors to process.
However, should the ordinary court system reach a
verdict in conflict with the committee's findings, the
committee's judgment will overrule it.
This set
of powers allows the committee to examine what it wants,
extract evidence in any way it pleases, hand down
indictments that courts must either convict on or be
overruled. It is the investigator, prosecutor, judge and
jury and its courtroom is one in which nobody has any
rights at all.
Such a set of powers does huge
violence to both basic constitutional principles and
human rights. That a group of political appointees
should have the right to second-guess the judiciary on a
matter of a criminal investigation throws out any idea
of separation of powers. That this committee has the
right to overrule judgments of the courts is allowing
political self-interest to dictate judicial punishment.
The pan-blue partisanship the committee will
inevitably, in the current poisoned atmosphere,
demonstrate is an obvious demerit, but it is not this
that has had relatively non-political groups such as the
Prosecutors' Reform Association, a group of state
prosecutors working to reform the judicial system, react
with horror at the statute's passage. Rather it is the
sheer disregard for fundamentals such as due process,
constitutional rights and judicial independence, whoever
holds the majority on the committee.
A statement
from the Ministry of Justice after passage of the
statute said: "The statute turns prosecutors into the
committee's sacrificial lambs. It deprives prosecutors
of their powers ... and it allows those without legal
expertise or the rank of prosecutor to become
prosecutors at the behest of political parties ... The
so-called 'truth investigation' has become a tool to
rape justice."
A member of the prosecutors'
office was more succinct: "Even the Gestapo was more
accountable," he said. The Prosecutors' Reform
Association has told its members simply not to work with
the committee or, if they do, resign their posts in the
judiciary first.
There are a number of moves
afoot to strike the stature down. The cabinet has the
right to send any bill it doesn't like back to the
legislature and ask it to reconsider. This was formally
done last week. This means the legislature has to pass
the statute again with an absolute majority, currently
109 of the 217 seats that are occupied in the 225-seat
house. The pan-blues can muster 112 votes, but not all
of these can be relied upon, since some KMT members are
also appalled at the impunity the committee has been
granted. They are also fed up with the pan-blue
leadership's attempts to keep the "Bulletgate" affair
alive since they see it as a way to stifle dissent about
that leadership's competence. Much in the vote,
therefore, might come down to the 11 independent
legislators. So far the independents have decided to
give five votes for the statute and five against, with
the 11th vote to be decided by drawing straws. Given
that the independents are often for sale to the highest
bidder, this system might, however, break down.
If the statute is passed a second time, and this
seems fairly likely, then the government will ask the
Council of Grand Justices for a judgment on its
constitutionality. This seems a far more difficult
hurdle for the statute to overcome. A constitutional
interpretation might take some time, and during that
time the committee may convene. The response of the DPP
and TSU - known collectively as pan-greens - is likely
to be a boycott. This will not prevent the committee
from convening but it will destroy any claim it might
have to representing a cross-party consensus.
In
truth, the pan-greens might be quite happy to see the
rump committee proceed along these lines in the run-up
to the legislative elections set for December 11, since
they believe that the committee's operation can only
further alienate public opinion, which is already tired
of the pan-blues' attempts to overturn and refight the
lost presidential election, attempts that polls suggest
might have cost the pan-blues 10 percentage points of
support from the almost 50-50 green/blue split in the
March presidential election.
The interesting
question: Should the pan-greens win the majority in the
legislature they expect, and the Grand Justices fail to
strike down the statute, what will they then do with the
investigation committee? This is an interesting test of
how far the pan-greens can renounce power for the sake
of liberal-democratic niceties. The temptation will be
to restack the committee with friendly pan-greens. The
right thing, of course, would be to abolish the
committee altogether. But that test is still some way
off.
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