Thursday, March 21, 2013

When Will We See the End of "Dinosaur Judges?"

When Will We See the End of  "Dinosaur Judges?" 
Written by Professor Fung Hu-hsiang
Translated by Bevin Chu
January 30, 2013
Taipei, China 

Translator's Note: The nine year long witch hunt waged by the "justice system" on Taiwan against Fung Hu-hsiang confirms that "democracy" is no guarantee of "freedom and human rights."  Democracy is not government of the people, by the people, and for the people. Democracy is government of the people in government, by the people in government, and for the people in government.

The year 2012 was the Year of the Dragon. The year 2013 is the Year of the Snake. The snake is commonly known as a "little dragon." To the Chinese people, dragons are symbols of good fortune. From the earliest "Book of Changes," dragons have represented stages in a larger process, the so-called "da zai qian yuan, wan wou zi she, nai tong tian." The dragon represents the active and creative Spirit of Life. That is why in Chinese culture the dragon has long occupied a position of respect.

Dinosaurs however, represent the opposite. They represent dull-wittedness, obliviousness, and rigidity. So-called "dinosaur judges" represent the defiance of common sense. They represent monsters who indiscriminately harm innocent people. Today's judiciary has many serious and dedicated "dragon judges" presiding over court cases. Unfortunately, it also has many "dinosaur judges." These self-appointed gods abuse their authority, and give judges as a whole a bad name.

This author once sued Chen Shui-bian for defamation. As a result, Chen served eight months in prison. This author opposes Taiwan independence and champions reunification. His position is clear. As a result, he is deeply hated by advocates of Taiwan independence. He is a thorn in their side. As a result, he has become the victim of a major injustice. His case has dragged on for nine years. This shows just how vindictive these dinosaur judges can be. They have turned the justice system into what Taiwanese industrial magnate Robert Tsao called a "meat grinder." They have turned the justice system into a "Flying Guillotine" that mutilates the innocent.

On January 17, 2012, the China Times published an article by American human rights champion Jerome Cohen. In it Professor Cohen reminded readers never to underestimate the Communist Party, the police, and other government agencies. They have repeatedly demonstrated their ability to twist the meaning of the law, and resort to difficult to detect, illegal means to abuse the powers that in principle are limited by the constitution and the nation's laws.

Alas, Professor Cohen sees only the Chinese Communist Party's human rights violations on the mainland. He turns a blind eye to countless similar violations by the pro-Taiwan independence DPP on Taiwan.

The author is a clear example. In 2004, DPP era "dinosaur prosecutors" and "dinosaur judges" imposed exit restrictions on the author. They deprived the author of his right to travel freely, as guaranteed by the constitution, for seven long years.

That was not all. The author's three daughters and three friends, were cavalierly charged with "perjury" by Shihlin District Prosecutors Office, entirely on the basis of supposition, even before the sentence was delivered and the was closed. Their rush to prosecute was naked political persecution by "dinosaur prosecutors" and "dinosaur judges." 

The United Nations Human Rights Convention, as well as the spirit of the ROC's laws call for the "presumption of innocence." This author was falsely accused in 2004 by a Filipino maid. Until a verdict is handed down, a defendant must be regarded as innocent. Yet the Shihlin District Prosecutors Office cavalierly restricted the author's freedom of travel. The author was scheduled to lead a group of students on a visit to the mainland. The prosecutors claimed this made the author a "flight risk." The presiding judge did not even bother to consult the author for clairfication before cavalierly imposing travel restrictions. Together, they deprived the author of his right to leave the country for seven years.

During this seven-year period, the author made repeated legal appeals. The Supreme Court repeatedly ruled that the courts could not "presume a flight risk." That is why it repeatedly remanded the case back to the High Court for retrial. Yet the "dinosaur judges" on the Taiwan High Court, repeatedly cited "maintaining the integrity of the proceedings" as a pretext. They brazenly defied the Supreme Court's instructions. They flagrantly violated of the principle of presumption of innocence. They grossly exceeded their powers. Yet many of these "dinosaur judges" were later rewarded with generous promotions.

In May 2011, the Filipino maid's false accusations were exposed in the international media. As a result she officially pleaded guilty to two counts of perjury. The third time the author was tried, the court summoned three expert witnesses who examined all of the physical evidence. They determined that the author had indeed been unjustly prosecuted. As a result the author was found not guilty. Only then were the long-standing exit restrictions lifted.

The author was acquitted in both the third and fourth trials. Yet without the introduction of any new evidence, "dinosaur prosecutors" in the High Prosecutor Office introduced anonymous letters as evidence, and in flagrant abuse of their power, appealed yet again. 

The author would like to ask the Prosecutor General, can prosecutors really treat anonymous letter as the basis for an appeal? The author would also like to ask the Minister of Justice, is he really unaware of this miscarriage of justice?

The outrages hardly end here. During the fifth trial, "dinosaur judges" utterly ignored the author's acquittal during the third and fourth trials. They obstinately reintroduced the Shihlin District Court's faulty judgment, based on incomplete evidence. They copied directly from it, and created a patchwork quilt legal case. They ruled on the basis of previously discredited evidence. They defied the legal principle that new evidence overrides old evidence. What kind of logic is this? What sort of justice is this?

During the author's fifth trial the presiding judge accused the author of "delaying the legal proceedings," and refused to commute the sentence according to the "speedy trial law." The presiding judge cited the author's request for a continuance during the first trial as pretext. The author was not even informed of the judge's actions in advance. This was tantamount to a sneak attack. Such a flagrant violation of due process contravemes the accused right to be tried in person. It denies the defendant his human rights. What can one call judges such as these, other than "dinosaur judges?"

In another similar situation, the presiding judge failed to inform the author of what was taking place. He cited a Supreme Court case, claiming it constituted evidence. He argued that it was similar in nature, therefore the author was guilty. Procedurally, this was a sneak attack. It deprived the author of his right to a legal defense. It cited only unfavorable cases. It did not cite favorable cases. It was clearly biased. What can one call judges such as these, other than "dinosaur judges?"

In fact, during the second trial, the Supreme Court made clear that the original evidence was riddled with dubious defects. Unless new evidence was presented, the verdict had to be "not guilty." During the third trial, expert witness were called to examine all the evidence. They found that the evidence favored acquital, even more clearly than before. They found that the verdict should have been "not guilty," even more clearly than before. Yet the fifth trial presented no new evidence. Instead, the presiding judge engaged in empty speculation. He treated his empty speculation as "circumstantial evidence." This was a flagrant violation of the rules of evidence. The presiding judge failed to cite any reason for his rulings. As a result, the evidence cited turned into a web  of contradictions. His judgment was based purely on speculation. It was clearly illegal. It was clearly in defiance of common sense. Yet he rendered this outrageous and tyrannical sentence. What can one call judges such as these, other than "dinosaur judges?"

According to the Judicial Yuan website, the presiding judge in this case, was a member of the same clique of judges who outraged the public with their ruling on the "three-year-old girl case." The group's judgment was utterly contrary to common sense. It provoked a public outcry and led to an escalation in public criticism. This judge was clearly a member of this group of "dinosaur judges." Who knew the judge in this case would render all manner of illegal judgments? This was truly regrettable. What can one call judges such as these, other than "dinosaur judges?"

The author has long deferred to his defense attorneys' recommentations. He has put up with these judges' tyrannical behavior. Although the judge in the first trial slammed his fist down on the table and bellowed insults at the author. The author remained silent. But he now sees that his forebearance will not ensure a fair trial. He has no choice but to appeal to the public. He must make the truth behind these dinosaur judges and dinosaur prosecutors public. Only this will enable the public to make a fair evaluation. Only this will compel the courts to redress this judicial farce. If this miscarriage of justice can be made public, it may help promote judicial reform and systemic reform. It may help ensure human rights for the public at large. That would be a blessing, both for the general public and for the nation's system of justice.

「恐龍法官」何時了?

民 國101年是「龍」年, 102年為「蛇年」, 俗稱「小龍」, 「龍」在中國人心中, 本是祥瑞的象徵, 從最早的《易經》, 乾元就用「龍」來代表各種階段型態, 所謂「大哉乾元,萬物資始,乃統天」; 「龍」的本性, 正是代表一種最為活躍創造的生命精神, 所以在中華文化歷史中, 一直非常推崇「龍」。

然而,「恐龍」代表的意思, 卻正好相反; 在眾人心目中, 代表一種遲鈍、顢頇、僵化,所謂「恐龍法官」
 , 更代表一種背離常情、 違反常理常識, 卻又濫害無辜生命的恐怖怪物。 在當今司法界, 雖然有很多認真敬業、 判案合情合理合法的「祥龍」法官, 不幸的是, 同時也有不少自命上帝、 任意濫用生殺大權的「恐龍」法官, 真正堪稱「害群之龍」!

本文作者因為曾經控告陳水扁誹謗案, 令其坐牢八個月, 復因反對台獨、 主張統一, 旗幟鮮明, 所以深遭台獨人士嫉恨, 視為眼中釘, 因而親身經歷重大冤案, 纏訟長達九年之久, 深深看清楚某些恐龍法官惡性重大, 他們不只讓司法成為曹興誠董事長口中的「絞肉
 機」, 更成為殘害忠良的「血滴子」!

民國102年1月17日, 中國時報登出美國人權名教授孔傑榮(Jerome
 Cohen)的大作, 他在文中提醒讀者: 「我們千萬不可以小覷共產黨、 警察和其他部門, 事實已屢屢證明, 他們有能力透過曲解法律, 和採用不易查察、 卻往往非法的手段, 在實踐中恢復被憲法和法律限制的權力。」

然而,孔傑榮教授只看到大陸共產黨統治下的人
 權問題, 卻忽略了台灣在民進黨台獨執政時期, 同樣有很多類似情形。

本文作者就是明顯見證, 從民國93年被民進黨時期的「恐龍檢察官」 與「恐龍法官」限制出境, 無端被剝奪憲法所保障的人權出境自由, 長達7年之久!

另有甚者, 作者的三個女兒與三位朋友, 在全案未定讞之前, 竟被臺灣士林地方法院檢察署用臆測的方法, 輕率的扣上「偽證」罪名, 匆匆起訴, 形成「政治追殺」的恐怖恐龍!

根 據聯合國「人權二公約」, 以及我國法律規定的「無罪推定」精神, 本文作者雖然在民國93年被菲傭誣告, 但在定案之前, 均應視為無罪, 然而臺灣士林地方法院檢察署承辦檢察官, 竟藉口作者會帶學生團參訪大陸, 便輕率的以「有逃亡之虞」聲請限制出境, 加上承辦審判長未向作者問清楚實情, 竟也輕率照准, 就此硬生生的剝奪了作者出境的遷徙人權, 長達七年之久!

在 此七年期間, 筆者屢次依法抗告, 最高法院也多次認為不能 「憑空臆測有逃亡之虞」, 所以多次發回要求高等法院更審, 但臺灣高等法院的「恐龍法官」等, 竟又多次強以「保全訴訟程序」為由, 悍然拒絕最高法院意旨, 不但明顯違反「無罪推定」原則, 而且自我膨漲權力, 這種「恐龍法官」, 後來居然很多都獲高升!

直到民國100年5月, 因為誣告作者的菲傭, 透過跨國視訊, 正式二度向法庭承認誣告, 更(三)審法庭也傳訊三位專家證人, 從種種物證鑑定, 證實本案確為冤案, 所以改判無罪, 才解除了漫長的限制出境。

然而,作者在更(三)、 更(四)審連續獲判無罪之後, 高檢署「恐龍檢察官」居然在沒有任何新證下, 硬用匿名信做證據, 再度濫權上訴!

作者很想請問檢察總長, 檢察官能用匿名信, 做為上訴證據嗎? 也很想請問法務部長, 對於此中的重大冤情, 是否知情呢?

更為過份的是, 更(五)審的「恐龍法官」, 竟然無視更(三)、 更(四)審的無罪判決, 硬是把原先士林地院人證據不全情形下的判決, 重新抄襲、 拼湊成章, 以其舊內容為基礎判刑, 完全違背「新證優於舊證」的法理, 這叫什麼邏輯? 這叫什麼天理!

特 別是,更(五)審的受命法官, 居然在沒有告知作者情形下, 擅自以作者從前更(一)審曾經請假為由, 逕指作者「拖延訴訟程序」, 而拒絕根據「速審法」減刑, 形同突襲偷襲, 如此公然違反程序正義, 違背直接審理原則, 剝奪作者答辯人權, 不叫「恐龍法官」, 又叫什麼?

另 外同樣情形, 受命法官在未告知作者情形下, 自稱引用最高法院定讞的類似案件做為證據, 聲稱因為性質類似, 所以同樣有罪; 非但在程序上同屬突襲偷襲, 剝奪作者的訴訟答辯人權, 而且只舉不利案件, 不舉有利案件, 明顯非常偏頗, 不叫「恐龍法官」, 又叫什麼? 事實上,本案在更(二)審時, 最高法院就已明言, 原先證據諸多可疑瑕疵, 若無新證據補強, 便應判為無罪, 更(三)審更特別傳訊專家證人鑑定種種物證, 強化有利證據, 所以才宣判無罪; 未料本次更(五)審並無任何新證, 受命法官竟然只用臆測方法, 自稱「間接證據」, 明顯違反證據法則, 受命法官而且多處判決未裁理由、 所引事證與卷內矛盾, 並且只用臆測方法作為判決基礎, 明明很多公然違法, 同時違反一般人的常情常理, 卻仍悍然判刑, 如此離譜卻又霸道, 不叫「恐龍法官」, 又叫什麼?

根據司法院網路資料, 本案受命法官, 正是當年轟動社會的「三歲女童案」被批評的同
 組法官, 當初該組判決完全背離常情常理, 引起輿論嘩然、 大加撻伐, 明確命名該組法官為「恐龍法官」, 未料本次該法官在本案中, 又做出種種違背情理的違法判決, 令人真正感慨; 這種「恐龍法官」 何時才能了!

本案長期以來, 作者都聽從律師建議, 對法官的態度忍氣吞聲, 即使從前更(一)審受命法官曾經公然對作者拍桌
 咆哮, 作者也都忍辱沈默, 但如今眼看一路以來的委屈並不能求得公正審判
 , 只有訴諸社會公評, 將本案中很多恐龍法官與恐龍檢察官真相公諸於
 世, 才能讓社會大眾公正評鑑, 也才能讓司法部門重新警惕冤情; 若能因為本案的公開冤情, 促成司法改革能從通盤制度改進, 並對廣大民眾的人權能增進保障, 相信才是真正全民之福, 也才是真正司法之幸!

6 comments:

  1. How I can contact with you?

    ReplyDelete
    Replies
    1. Dear syrkiuis,
      I neglected my blogs for several years.
      I am now getting back to them.
      My "flagship blog" has changed. It is no longer The China Desk.
      It is "An Enemy of the State."
      http://anenemyofthestate.wordpress.com/
      As before, please feel free to use any material you wish. Credit and a link back would be appreciated of course.

      Delete
  2. Ah, okay :D

    I'm a libertarian from Poland and I run (with my friends) website about libertarianism, Austrian School Economics etc.
    I like very much your post about Chinese liberalism (from "A is for Anarchy"). We don't know much about China or Chinese ancient libertarians (about Taiwan and Hong Kong also we don't know much)... Some people are saying in China is free market capitalism... Polish Mises Institute translated Rothbard's article about ancient libertarians from China but I think that it's all.

    It would great if you agree for...a cooperation with us - to spread knowledge about Chinese libertarians and about economy/political situation in China and Taiwan. What do you think about it?

    PS: But I have to... prejudice you that we can't pay you :/ We are students and we aren't earning on that site - we don't have any ads.

    ReplyDelete
  3. Ah, okay :D

    I'm a libertarian from Poland and I run (with my friends) website about libertarianism, Austrian School Economics etc.
    I like very much your post about Chinese liberalism (from "A is for Anarchy"). We don't know much about China or Chinese ancient libertarians (about Taiwan and Hong Kong also we don't know much)... Some people are saying in China is free market capitalism... Polish Mises Institute translated Rothbard's article about ancient libertarians from China but I think that it's all.

    It would great if you agree for...a cooperation with us - to spread knowledge about Chinese libertarians and about economy/political situation in China and Taiwan. What do you think about it?

    PS: But I have to... prejudice you that we can't pay you :/ We are students and we aren't earning on that site - we don't have any ads.

    ReplyDelete
  4. Dear syrkius,

    I have no objection whatsoever to cooperation in the cause of liberty.

    I'm not sure what you have in mind exactly. But for starters, you are free to use any articles you find here.

    I'm not big on IPR. I don't think ideas can be patented or copyrighted. Intellectual credit would be appreciated.however .

    ReplyDelete