A time comes when silence is betrayal*

Jerome Cohen, professor of law at New York University and Harvard mentor of Ma Ying-jeou, had an article on Taiwan’s justice system published in the South China Morning Post on 11 June#. He begins the article by pointing out the some of the positives and negatives of law and government in Taiwan.

The key point of his article is not the ongoing detention of former President Chen Shui-bian and judicial persecution of DPP officials, although these are mentioned. What troubles Cohen is the failure of legal scholars to speak out.

These allegations are troubling, of course. Yet, when I asked my academic friends why more of them – there are a few distinguished exceptions – did not speak out, publish essays and document their concerns, all too often I heard: “What good would it do? We can’t change anything. They won’t listen. Besides, we don’t want to be controversial. People will accuse us of `being too Green’ or sympathising with corruption.” […]

Such sentiments are understandable, especially in a busy, successful but bitterly divided political environment in which mutual trust and respect are in short supply. Yet Taiwan’s evolving democracy confronts multiple challenges and needs the benefit of all the expertise and wisdom that is available.

It will be difficult to achieve optimum solutions to many major law reform issues without the informed, objective contributions of the island’s best minds. If many of them hold back, for whatever reason, if they fail to take advantage of their hard-earned freedoms to speak out, they put their society’s precious accomplishments at risk.

Cohen goes on to compare the situation in Taiwan with that in China where lawyers take tremendous risks to speak out against the government.

If Taiwan’s law professors, legal scholars, social scientists and others with unique qualifications to promote public understanding keep silent, they actually exercise fewer freedoms than their counterparts on the repressive mainland, some of whom risk their physical safety, their careers and their family’s well-being by “speaking truth to power”. As I listened to Taiwan law professors explain their aversion to the public arena, I thought of mainland friends who are paying dearly for having voiced opposition to dictatorial rule. Kidnappings, beatings, imprisonment, disbarment, loss of jobs, exile and harassment of their spouse and children plague activist academics, as well as lawyers. Yet some persist. Should Taiwan’s legal scholars sit on their hands and seal their mouths? What price private pursuits?

Perhaps some people have adopted a wait and see approach thinking that it would be rash to judge the Ma government too quickly. However, after more than a year in office it is clear that judicial reform is not on Ma’s agenda.

A clear signal that Ma has no intention of leading much needed reform of Taiwan’s legal system was sent this week. Ma filed an appeal in a case against a prosecutor whom he accuses of incorrectly recording an interview when Ma was facing corruption charges in 2007.

In response former Vice-President Annette Lu said, “With power in hand, Ma should launch a full review of similar cases and straighten out the Ministry of Justice instead of putting the blame on a single prosecutor.” The Taiwan News carried an editorial calling for Ma to lead reform rather than filing lawsuits.

Although Ma has stated that his decision is based on “principle and judicial justice,” the action carries a distinct flavor or aroma of “settling accounts” to the end with the prosecutor who dared to file such an indictment.

Whether most Taiwan citizens can accept such a procedure as a manifestation of “justice” is open to question, but there can be little doubt that Ma’s action has hurt the image of our judicial system and the principle of division of powers in our democratic system.

While Taiwan’s legal system may be broken it is not beyond fixing. Taiwan needs a just and fair legal system that guarantees the highest standards of human rights. Silence will not bring about the needed reforms. This is a project that requires vision and leadership. Only the collective voices of those who care about justice will effect positive change.

*title borrowed from Martin Luther King’s speech “A Time to Break Silence”.

#The SCMP is available by subscription only, but you can find the text of the article here. The China Times (中國時報) published a Chinese version.