2017年4月25日 星期二

Anti-reform protesters a far cry from Sunflowers

Huang Di-ying  黃帝穎
(Huang Di-ying is a lawyer and director of Taiwan Forever Association)

Translated by Perry Svensson

TAIPEI TIMES / Editorials 2017.04.25

After the legislature on Wednesday decided to initiate the first review of the draft pension reform act, groups opposing the reform proposals began a violent protest outside the legislature. They even assaulted county commissioners, mayors and legislators entering the building and some of the protesters wondered what was wrong with that, saying: “If the Sunflower movement protesters could do it, why can’t we?”

In a play on words alluding to the Sunflower movement, these protesters are now being called the “No-money-to-spend movement.”

The guiding principle for the movement opposing pension reforms is to protect their own vested interests, while the Sunflower movement was fighting for a loftier reason — the public interest against the opaque handling of cross-strait service trade agreement negotiations.

There is no comparing the two, so the discussion should stick to whether the anti-reform protesters’ violent behavior is in line with a court decision that civil disobedience could offset illegal behavior.

The key factor that caused the Taipei District Court to arrive at a not-guilty verdict in the case against Lin Fei-fan (林飛帆) and the other Sunflower movement protesters for occupying the main chamber of the Legislative Yuan was that they met seven requirements of civil disobedience which offset any legal violations.

Applying these seven factors to the behavior of the anti-reform protesters who assaulted legislators and other officials makes it clear that they do not meet the requirements.

So, legally speaking, they cannot refer to the Sunflower movement verdict.

The fourth of the seven conditions for civil disobedience requires “open and non-violent behavior,” meaning that then-premier Jiang Yi-huah (江宜樺) could freely visit the legislature and engage in dialogue with the protesters without being assaulted by the Sunflower students in the way that officials and legislators were beaten by the anti-reform protesters.

The court’s sixth condition for civil disobedience was that there must be “an element of necessity, in that there must be no other legally effective methods available.”

The Sunflower movement was a protest against the cross-strait service trade agreement, and had the agreement been passed, there would be no more legal recourse for the students to address the situation, which was the reason why the court came to the conclusion that the protest met the necessity requirement.

If the pension reform bill is passed, on the other hand, the protesters would still have other avenues for addressing the situation — they could file an administrative appeal and even turn to the Council of Grand Justices for a constitutional interpretation of the decision.

The protesters against pension reforms abandoned seeking redress through legal channels and instead decided to beat up legislators and officials. This is not only an ugly way of defending their vested interests, but it also lags far behind the moral vantage point of the Sunflower movement.

From a legal point of view, the protesters against reform do not meet the requirements for civil disobedience, and they are fundamentally unworthy of comparison with the Sunflower movement.

Polygraph tests always unscientific

Wu Ching-chin 吳景欽

(Wu Ching-chin is an associate professor, chair of Aletheia University’s law department and director of Taiwan Forever Association)

Translated by Lin Lee-kai

TAIPEI TIMES / Editorials 2017.04.24

Group one of the National Congress on Judicial Reform preparatory committee passed a resolution that would prohibit performing polygraph tests — commonly known as lie detector tests — on the disadvantaged, in the hope of protecting the rights of disadvantaged victims and defendants in lawsuits.

However, defining “disadvantaged” is problematic. Another issue to consider is whether a polygraph test would be more or less effective depending on whether the subject belongs to a privileged or a disadvantaged group.

The premise for polygraph testing is that the truth or falsehood of one’s statement will trigger a specific, uncontrollable, physiological reaction in the subject that can be measured and then interpreted by an expert. These assumptions may appear scientific, but they have always been controversial.

The doubts about performing polygraph tests mainly focus on their objectiveness: Whether the examiner is an expert, whether the polygraph instrument meets standards, whether the environment where the test is performed is normal; all these factors will affect the results of a test, and in combination with the fact that physiological conditions differ between people, the question is how there could be a consistent benchmark for evaluation.

Other scientific tests, such as DNA tests, are not affected by such factors, and such tests can be reproduced by other experts using the same procedure, which means that their accuracy is extremely high.

In comparison, polygraph testing cannot rule out many of the variables, which means that it does not have the reproducibility required by science, and the accuracy of the process and the results cannot be examined — a fatal weakness of polygraph testing.

Although practical criminal justice in Taiwan does not rule out this method of evidence, it does require that the examiner has received expert training and is experienced, that the equipment is of good quality and operates normally and that the environment does not interfere.

In addition, polygraph tests require that the subject is in a normal physical mental state. In order to keep the respondent in this state, examiners must inform the subject of their right to refuse the test and the possible effects of polygraph testing, and they must verify that the subject’s physical and mental state is conducive to conducting a test.

That there are so many requirements reveals the concern that a lie detector test carried out under duress will violate the defendant’s right to a defense and that results are likely to be distorted.
Although judicial practice has such strict requirements around polygraph testing, in reality these requirements might not be met, because the environment is controlled by the interrogator and the subject is alone. Even if the subjects are innocent, it is doubtful whether they would be in their normal physical and mental state.

Furthermore, there is no institution to issue expert certificates to interrogators and no objective standard for procedures, which raises the question of how polygraph results should be validated.

Even worse, polygraph testing is often carried out because prosecutors think defendants are not telling the truth. This creates a risk that examiners might be prejudiced and makes it difficult to ensure that they are truly objective. Even if the defendant does not confess, these factors would make it hard not to fail the test, in effect turning it into a confession.

It often happens that even if the subject passes the polygraph test, the authorities reject the result and send the defendant to another institution for another test. This not only seriously violates the defendant’s right against self-incrimination, it also raises suspicions that defendants are given polygraph tests over and over again to frame them.

The validity of the polygraph test in criminal trials therefore has nothing to do with whether the subject belongs to an advantaged or disadvantaged group. However, it is necessary to comprehensively review whether this technology is a matter of pseudoscience disguised as science and whether it should be banned from the courtroom.

After all, the mindset that if a defendant does not confess, they will be subjected to a polygraph test — and if they do not pass the test, they are guilty — violates the presumption of innocence and is possibly a source of injustice.

2017年4月22日 星期六



逢司法改革國是會議密集進行之際,各界對檢察官定位「究竟為行政官或司法官?」、檢察權入憲、檢察一體與檢察官獨立性、偵查不公開原則、檢察官究責、淘汰機制等討論非常熱烈,然包括檢警關係(雙偵查主體?) 、檢察官進場與退場機制等重要議題,司法改革國是會議卻反而較少觸及。為此,永社特別邀請專家學者,舉辦座談會,盼能提出檢察制度改善之建言,供司法改革國是會議參考。

時間:04/22(六) 09:30-11:45
地點:台大校友會館三樓 3A會議室

主持人:陳傳岳 / 律師、永社名譽理事長

與談人:范文清 / 東吳大學法律學系副教授
    高宏銘 / 律師、法操共同創辦人、曾任檢察官
    鄭文龍 / 律師、永社理事
    吳景欽 / 真理大學法律系副教授兼系所主任

 綜合討論 45min


2017年4月20日 星期四



蘋果日報/論壇 2017.04.20











自由時報/自由廣場 2017.04.20







2017年4月17日 星期一



自由時報/自由廣場 2017.04.16








2017年4月16日 星期日

Reopen the KMT illegal party asset sales probe

Huang Di-ying  黃帝穎
(Huang Di-ying is a lawyer and director of Taiwan Forever Association)

Translated by Julian Clegg

TAIPEI TIMES / Editorials 2017.04.15

The Supreme Prosecutors’ Office Special Investigation Division (SID), abolished on Jan. 1, was responsible for investigating possible irregularities in the 2005 sale of three media companies previously owned by the Chinese Nationalist Party (KMT), namely the Broadcasting Corp of China (BCC), China Television Co and Central Motion Picture Corp (CMPC) — a case that involved former president and then-KMT chairman Ma Ying-jeou (馬英九).

However, in August 2014, when the nation was focused on relief operations following a series of gas explosions in Kaohsiung, the SID closed the case, saying that it had found no evidence of illegality. At the time, people in the legal field criticized the SID and suggested that it was trying to avoid oversight by closing the case at a time of crisis.

After the SID’s abolition, the Executive Yuan’s Ill-gotten Party Assets Settlement Committee has investigated the sale of land belonging to CMPC.

The committee found that the SID did not summon Ma for questioning, even though he was the main decisionmaker in the sale.

On Tuesday, news media reported that the SID had discovered statements made by KMT figures, one of which had said: “At the time, we barely got paid.”

In view of these findings, the committee is compiling new evidence that it will hand over to the Taipei District Prosecutors’ Office, possibly this week. Reopening investigations into the disposal of the three companies would help clarify suspicions about Ma’s involvement in the sale of the KMT assets and it would help restore public confidence in public prosecution.

There are other dubious points to the case besides procedural problems, such as the SID’s apparent failure to question Ma and the way it closed the case just after the Kaohsiung disaster.

KMT Central Policy Committee director Alex Tsai (蔡正元) has been embroiled in a war of words with Hsu Chiao-hsin (徐巧芯), spokeswoman for Ma’s office.

“Someone sold the party assets, but could not collect the money… Someone will go to hell if you [Hsu] mention the CMPC case again,” Tsai wrote on Facebook.

The SID’s closure of the case has clearly not removed doubts about the sale, so the Taipei District Prosecutors’ Office should reopen investigations.

While investigating the BCC sale, the assets committee found that people related to the case had said that when the KMT sold its stake, “some people made higher bids than Jaw Shaw-kong (趙少康),” referring to the former politician and radio commentator who eventually bought the BCC in 2006 and became its chairman.

These people accused the KMT of underpricing the BCC when it sold it to Jaw, which constitutes breach of trust, a criminal offense.

The existence of such recorded statements also means that the Taipei District Prosecutors’ Office could summon people other than Tsai for questioning. Furthermore, there is likely to be more evidence in the committee’s files that could constitute a valid basis for reopening the investigation.

The SID’s involvement in the scandal — in which Ma allegedly collaborated with then-prosecutor-general Huang Shih-ming (黃世銘) to divulge classified information, conduct unwarranted phone-tapping and wage a political war against then-legislative speaker Wang Jin-pyng (王金平) — caused it to degrade into a political tool and lose all credibility.

That is why the public remained utterly unconvinced by the SID’s conclusions when it closed the case in the wake of the gas blasts. Now that new evidence has come to light, and in view of Tsai’s revelations, the Taipei District Prosecutors’ Office should take up the case where the SID left off.

2017年4月12日 星期三

三中案 應重啟偵查


自由時報/自由廣場 2017.04.11







2017年4月10日 星期一

「民團譴責監院淪國民黨打手 籲仉桂美下台」會後新聞稿

「民團譴責監院淪國民黨打手 籲仉桂美下台」
永社 記者會後新聞稿














永社副理事長 黃帝穎律師 02-2388-2505
永社副秘書長 洪崇晏 02-2388-3997 tfawork2014@gmail.com


民報/監委對黨產條例聲請釋憲 民團:淪國民黨打手 仉桂美下台

2017年4月8日 星期六



民報/專欄 2017.04.07