Identifier
Created
Classification
Origin
09TAIPEI623
2009-05-22 10:46:00
CONFIDENTIAL
American Institute Taiwan, Taipei
Cable title:  

TAIWAN JUDICIAL SYSTEM: RELIABLE BUT ROOM FOR

Tags:  PGOV KJUS KCRIM PREL TW CH 
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VZCZCXRO0820
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O 221046Z MAY 09
FM AIT TAIPEI
TO RUEHC/SECSTATE WASHDC IMMEDIATE 1636
INFO RUEHBJ/AMEMBASSY BEIJING 9199
RUEHUL/AMEMBASSY SEOUL 0172
RUEHKO/AMEMBASSY TOKYO 0706
RUEHCN/AMCONSUL CHENGDU 3113
RUEHGZ/AMCONSUL GUANGZHOU 0261
RUEHHK/AMCONSUL HONG KONG 0630
RUEHGH/AMCONSUL SHANGHAI 2566
RUEHSH/AMCONSUL SHENYANG 7061
RUEKJCS/SECDEF WASHINGTON DC
RHHMUNA/USPACOM HONOLULU HI
RHMFISS/DEPT OF HOMELAND SECURITY WASHINGTON DC
RUEAIIA/CIA WASHDC
RHMFISS/DEPT OF JUSTICE WASHINGTON DC
RHEFDIA/DIA WASHINGTON DC
RHHJJAA/JICPAC HONOLULU HI
C O N F I D E N T I A L SECTION 01 OF 03 TAIPEI 000623 

SIPDIS

STATE FOR L
STATE FOR INL
DEPARTMENT PASS AIT/W FOR BARBARA SCHRAGE

E.O. 12958: DECL: 05/22/2019
TAGS: PGOV KJUS KCRIM PREL TW CH
SUBJECT: TAIWAN JUDICIAL SYSTEM: RELIABLE BUT ROOM FOR

REFORM

REF: TAIPEI 1690

Classified By: AIT Director Stephen M. Young
for reasons 1.4(b) and (d).

C O N F I D E N T I A L SECTION 01 OF 03 TAIPEI 000623

SIPDIS

STATE FOR L
STATE FOR INL
DEPARTMENT PASS AIT/W FOR BARBARA SCHRAGE

E.O. 12958: DECL: 05/22/2019
TAGS: PGOV KJUS KCRIM PREL TW CH
SUBJECT: TAIWAN JUDICIAL SYSTEM: RELIABLE BUT ROOM FOR

REFORM

REF: TAIPEI 1690

Classified By: AIT Director Stephen M. Young
for reasons 1.4(b) and (d).


1. (C) Summary: Taiwan's judicial system is fundamentally
reliable and independent, say legal scholars, practitioners,
and officials, but there is room for reform - as evidenced by
the controversy surrounding the prosecutions of former
president Chen Shui-bian and other Democratic Progressive
Party (DPP) officials. Structural and procedural measures
will help ensure fairness and due process. Reform advocates
see the heightened public interest and debate as a means of
pushing additional improvements to the system, such as
limiting pre-indictment detention. End Summary.

Structural Measures Ensure Judicial Independence
-------------- ---


2. (C) In conversations with AIT and in public statements,
non-partisan legal scholars, NGOs and officials express
confidence that structural features of Taiwan's judicial
system help protect the independence of the judiciary and
ensure due process. Taiwan's three-tier court system, the
reliance on three-judge panels in major criminal cases, and
random case assignments limit variations in sentencing and
mitigate personal biases or inexperience that may influence
judgments. Moreover, Taiwan judges and prosecutors are not
politically appointed. They are civil servants who typically
pass a combined exam after graduating from law school. Those
who pass this exam complete two years of classroom and
practical training before choosing whether to become judges
or prosecutors. Procedural reforms instituted over the past
six years have also strengthened the rights of the accused by
incorporating elements of the U.S. adversarial system. Most
significantly, suspects have the right to have legal counsel
present during questioning, to have interrogations recorded,
to be provided with legal counsel if indigent, to
cross-examine witnesses, and exclude hearsay testimony.

Active Advocacy Encourages Continued Reform
--------------


3. (C) Taiwan has a history of more than twenty years of

successful structural and procedural reforms of its
judiciary. This pattern of reform continues today with
lively debate over which areas could benefit next from public
demands for reform. During the Lee Teng-hui administration
in the late 80s, the movement for judicial reform, whose
members included lawyers, judicial officers, scholars, and
officials, began in earnest. Eventually, this led to the
creation of the Judicial Reform Foundation (JRF) and other
reform-minded organizations, whose goals were to increase
judicial independence and public confidence. Experts and
academics agree that by the time of the National Judicial
Reform Conference in 1999, judges and prosecutors could, and
did, freely assert their judicial independence and that many
procedural reforms over the past ten years have increased
protections of defendants' rights. There is disagreement,
however, over how effective reforms have been in increasing
the efficiency of the courts. Many say Taiwan's current
"modified" adversarial system, combining elements of the
Japanese inquisitorial system with elements of the U.S.
adversarial system, requires continued reform to fully meet
its obligations to the people.


4. (C) One of the most visible targets for reform is
pre-indictment detention. While pre-indictment detention is
a common feature of inquisitorial systems in Europe, Latin
America, Korea, and Japan, many legal professionals, reform
advocates, and even former judicial officials agree that the
use of pre-indictment detention should be limited. According

TAIPEI 00000623 002 OF 003


to Taiwan's Code of Criminal Procedure, a prosecutor may
request the court to remand a potential defendant to
detention (before being indicted, or charged) if the charges
being sought carry a sentence of five years or more, there is
a risk of flight, or there is concern that the suspect may
tamper with witness testimony or evidence. The prosecutor is
required to demonstrate probable cause and a judge must
approve the request. Pre-indictment detention is limited to
two months at which point the court may extend detention for
another two months, if necessary. JRF President Huang told
AIT that his organization plans to push for a change in
pre-indictment detention from this two-plus-two formulation
to something more in line with Japan's pre-indictment
detention of ten days plus ten days. Other reforms JRF will
seek are an increase in public accountability for
prosecutors, particularly with regard to press leaks, and the
passage of legislation regulating judicial officers, such as
the Judges Law currently before the Legislative Yuan (LY).

Chen Case Highlights Concerns
--------------


5. (C) The corruption trial of former President Chen
Shui-bian (the first president to face prosecution after
leaving office) and the prosecutions of several former and
current DPP officials, have prompted intense media scrutiny
of the reliability and fairness of Taiwan's judicial system
(ref A). Critics charge that political interference in the
judicial process has led to a higher number of DPP
prosecutions (vice KMT) since President Ma Ying-jeou took
office in May 2008. Chen's trial has also brought
international attention to issues such as pre-indictment and
pre-trial detention, as well as prosecutorial leaks and
misconduct, accountability and transparency in judicial
procedures. While reform advocates such as the Judicial
Reform Foundation and the Legal Aid Foundation note that some
of these issues are longstanding and not particular to the
Chen case, they add that the media spotlight on Chen's trial
has prompted a welcome public review of the areas where
Taiwan's judicial system could benefit from further reform.

Political Interference vs. Political Bias
--------------


6. (C) Legal scholars and practitioners agree it is hard to
prove political interference by the KMT government in the
former President's case, particularly since the investigation
into his alleged misconduct began while Chen was in office.
Some scholars and legal experts note that, while political
interference by the KMT government in the judicial system is
unlikely, political bias by individual judges and prosecutors
remains possible. The ability of such bias to influence
judicial decisions cannot be excluded, but should be treated
as individual misconduct and disciplined or prosecuted
accordingly. Such individual bias, say these scholars, is
common to all legal systems. Ultimately, the use of
three-judge panels for important cases and Taiwan's
three-level appeal system mitigate against the risk of
political interference or bias, they note.

Freedom of Press Allows Open Debate, Exerts Pressure
-------------- --------------


7. (C) Reform advocates hope heightened public interest in
the judicial process will help further their push for reform.
Certainly, freedom of speech and press on Taiwan is
well-developed and the active media here provides a venue for
the vibrant and often contentious debate over judicial
independence and political influence on the judicial process.
At times, the media can become part of the problem, however.
While the media is active, it can also be irresponsible,
with local papers and television talk shows more interested

TAIPEI 00000623 003 OF 003


in finding sensational stories than fact-checking their
findings. Similarly, the media can be aggressive and may not
respect personal or professional boundaries in pursuit of a
story. Prosecutors often feel unable to restrict media
access for fear of criticism in the press. Prosecutors and
judges acknowledge that strong criticism from media
commentators or negative coverage can generate public
pressure on judicial officials, though there is no clear
evidence of influence on court judgments. Perhaps of greater
concern are allegations that, as happens at times in the
United States, parties with access to confidential
information in high-profile trials selectively leak it to the
media to influence public opinion.

Comment
--------------


8. (C) It is important to bear in mind that the judicial
system that Chen supporters and some DPP officials claim is
rife with pro-KMT personnel using their offices to persecute
political opponents is the same one that has prosecuted key
KMT members in recent years. For example, current President
Ma Ying-jeou was tried for budget abuses, KMT legislator Liao
Cheng-chin for vote-buying, and Taichung City Council Speaker
Chang Hung-nien for corruption. Perhaps more importantly, it
is the same institution that helped ensure political
stability in the aftermath of the 2004 elections, ultimately
confirming Chen Shui-bian's re-election and striking down as
unconstitutional the KMT-controlled legislature's March 19
Shooting Incident Truth Commission Statute. In fact, current
calls for legal reform tend to focus not so much on ensuring
the independence of the judicial process, but on constraining
the powers of judges and prosecutors in order to prevent
abuse. When pressed, most independent observers recognize
the judicial system as an imperfect but improving and
generally reliable and independent institution.
YOUNG