Why the Judiciary is Powerless to Handle the Hung Chung-chiu Case

Hannah Arendt wrote in Eichmann in Jerusalem: A Report on the Banality of Evil: "There we beheld a gigantic, complex bureaucracy of crime, with numerous participants, of various levels, using different modes of activity... This is a collective crime... The degree to which each of these criminals was involved in the actual killing is completely irrelevant; conversely, generally speaking, the further removed one is from the actual killing, the greater the responsibility."

The court of first instance's ruling on the Hung Chung-chiu case sparked public outrage, with most people feeling the sentences were too lenient. Taiwan's judiciary suffers from inherent flaws and lacks public trust, making it difficult to emerge unscathed from any controversial case. Recent official reforms are merely self-congratulatory. Taking the Hung case as an example, the Criminal Speedy Trial Act, the Judges Act, or even the lay participation system recently pushed by the Judicial Yuan are likely all incapable of resolving this dilemma. Where exactly does the problem lie, and how should it be resolved?

First, do judges fail to understand public opinion, or does the public fail to understand judges? The law has its threshold, but this is not an excuse; rather, it is a question of whether the judiciary wants and intends to democratize and popularize. If those in power refuse to deepen the judiciary toward democracy and the people, controversial cases are destined to remain a "dialogue of the deaf."

Public opinion denounces judges as dinosaur judges, while judges strike back by labeling public opinion as unprofessional populism. The concrete solution is to allow the public to substantively participate in trials, and to make litigation procedures correspondingly popularized and colloquialized. This is a massive undertaking, but until it is done, we will only continue to face endless regrets.

The Problem Lies in Structural Injustice

Second, does the judiciary recognize and can it resolve structural injustice? If judges treat the Hung case as an "ordinary" case, the public will use ordinary "sentencing guidelines" to question it. When a group of hot-blooded youths punch and kick someone, injuring them, and the victim subsequently dies due to a weak constitution, legal practice dictates that even the lookout will be recognized as a co-principal in murder or bodily injury resulting in death, bearing joint responsibility.

When Chang Te-cheng drove into the Presidential Office, he could be seen as having the intent to kill if someone was struck; when military officers discipline troops and do not care if someone is disciplined to death, that constitutes indirect intent to kill, and knowing that discipline might kill someone constitutes recklessness with awareness. Yet the court of first instance treated every defendant as an "innocent little cog" who bore neither intent nor negligence regarding the resulting death. By severing responsibilities and breaking causation, this inevitably invites accusations of inconsistent standards.

However, the Hung case should be "special," and its core issue is whether it can respond to structural problems within the military. Holding these military officers accountable is no different from holding the officers in the Chiang Kuo-ching case accountable; once severed, it disappears. Evil can manifest in very ordinary people. To investigate these structural crimes, one must break away from the criminal law's fundamental mindset of "atomic individual behavior" and conduct a collective examination. As Hannah Arendt emphasized, the actual execution and degree of involvement are actually irrelevant; conversely, the further one is from the actual act, the greater the potential responsibility.

The Hung case carries the historical complex of Taiwan society's dissatisfaction with the military, and it also conceals the problem of how to transition through structural injustice. The judiciary's inability to handle this, fundamentally, stems from its own inability to first address the structural injustice within the judiciary itself.