Ko’s case shows need for judicial reform

• By Chuang Sheng-rong 莊勝榮

Prosecutors in Taiwan People’s Party (TPP) Chairman Ko Wen-je’s (柯文哲) corruption case filed a request for his detention on suspicion of accepting bribes and profiteering. The Taipei District Court judge rejected the request for a number of reasons.

First, Ko is not a member of the Taipei Urban Planning Commission. Second, he lacks relevant expertise. Third, he trusted the majority resolution and the opinions of former Taipei deputy mayor Pong Cheng-sheng (彭振聲). Fourth, although increasing the floor-area-ratio (FAR) of the Core Pacific City project was illegal, there is space for reasonable interpretation.

The judge concluded that the evidence was insufficient to confirm whether Ko knew his actions were illegal and that the likelihood of conviction was not high, and ruled to release him without bail. However, the Taipei City District Court failed to elaborate on whether Ko contravened his duties by accepting bribes. That headache would be left for the High Court to handle on appeal.

According to the Taiwan High Administrative Court’s July 2020 decision, the Core Pacific City project’s FAR of 560 percent was a one-time guarantee, and the Core Pacific City’s appeal was rejected. This administrative court decision, a win for the Taipei City Government, restricted the project’s FAR to 560 percent. It was not a piece of scrap paper. Can the Taipei mayor just give away an additional 20 percent FAR with his signature? On what legal basis is that allowed? Did Ko really not understand the illegality of his actions? Can he truly claim that he was unaware of the existence of such an important verdict? For the winner of a case to pay reparations to the losing party — in the form of a 20 percent increase in FAR — without any form of benefit or repayment is just absurd. Is a battle where the winner pays the loser one worth fighting? This is just common sense; it does not require any expertise.

The judge indicated that the Taipei City Government’s 2021 decision to increase the project’s FAR by 20 percent was illegal, but it failed to review this key administrative court ruling. If he had, perhaps there would have been a different outcome.

The Court Organization Act (法院組織法) only stipulates the number of judges required after indictment, but it does not outline how many judges should rule on pre-indictment detention hearings. In practice, all court administrative regulations stipulate that one judge makes an independent ruling. This is extremely dangerous and irresponsible because the details of corruption cases are often quite complex and not immediately made apparent.

Even after years and years of a trial, a judge might not necessarily make an accurate decision. Judges in detention hearings are not superhuman.

How could they be expected to finish reading more than 1,000 pages of documents, completely digest their contents, and come up with the references for a well-backed decision in just a few hours? Who would believe such extraordinary abilities?

Therefore, judicial reform should start by addressing institutional flaws. Regulations should be amended to replace the single-judge system. Detention hearings of high-profile criminal cases should have three judges that work collaboratively and make a joint decision. This would help avoid unnecessary detentions and reduce the longstanding problem of a legal system with ever-changing phases and inconsistent interpretations. Otherwise, deciding whether to detain someone would continue to resemble a game of table tennis (take the case of former vice premier Cheng Wen-tsan (鄭文燦), which bounced back and forth three times). How else would the judicial system earn the public’s trust?

Chuang Sheng-rong is a lawyer.

Translated by Kyra Gustavsen