Beyond "Doing the Right Thing," Please Also "Do Things Right"—A Court That Detains People Without Issuing a Detention Warrant?

Let's play a small grammar game.

In "do the right thing," "right" is an adjective modifying the noun "thing," emphasizing doing the "correct" thing and placing greater emphasis on the "substantive" aspect. In "do the thing right," "right" is an adverb modifying the verb "do," emphasizing doing things "correctly" and relatively focusing on the "procedural" aspect.

Law is much the same, frequently divided into "substantive" and "procedural" dimensions.

Should a suspect who may abscond be detained? Yes! Should a criminal suspect who may commit another offense be detained? Yes! Detaining such individuals aligns with "substantive justice." However, the law demands more than just the display of substantive justice; it requires that while achieving substantive justice, "procedural justice" also be demonstrated and never disregarded. Taiwan's legal culture and judicial practice have long placed substance over procedure. It is most lamentable that people always try to "do the right thing" by "wrong means."

Paragraph 1 of Article 102 of the Code of Criminal Procedure explicitly states in eight characters: "A writ of detention is necessary to detain an accused." Looking further at the wording throughout the entire Code of Criminal Procedure, there was never any contemplation from beginning to end of a situation where "a person can be detained without issuing a detention warrant." The Supreme Court, using the feather of a "court of law" as an arrow, expansively interpreted Article 121, secretly passing the buck of trying defendants and issuing detention warrants to the High Court, which sits as a "court of fact." The High Court, in turn, failed to take this mandate seriously. The consequence of no one being willing to faithfully practice procedural justice is the current state where substantive justice suffers!

This brings to mind brothers squabbling and shifting responsibilities onto one another. The older brother wears a stern face and says, "We cannot review it, so of course we cannot issue a detention warrant," while the younger brother grievancebly says, "It's not even my case, why push it onto me?" Alas! It is rather embarrassing to say outspokenly, but in reality, regarding defendants whose "detention is being extended," the court merely summons them from afar to ask a single question: "We are going to continue your detention, do you have any objections?" Apart from remaining silent, defendants usually say "no objection," and generally do not know what to say. Of course, having objections usually achieves nothing either, and the entire process certainly takes no more than one minute. However, if even this kind of ritualistic formality is met with foot-dragging and an unwillingness to carry it out honestly, then abusive detention, searches, and wiretapping perhaps should not come as such a shock. After all, while Westerners say that "procedural justice" is the premise and foundation of "substantive justice," in our view, it is probably just another one of those Western gimmicks!

※ Published in: China Times / A15 / Forum Square