‘Medical Bail’ for Chen: The ‘Least Bad’ Solution?

A retrial is a no go, and an official pardon would open a political Pandora’s box. Medical bail for the former president is feasible, and it is supported by experts
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Tony Chiu
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The medical condition of former president Chen Shui-bian (陳水扁) while in custody has continued to deteriorate. After visiting Chen at his prison in Taichung last week, Democratic Progressive Party (DPP) Chairperson Tsai Ying-wen (蔡英文) expressed concerns for the health of the former president, observing that the symptoms previously documented in the media, such as incontinence, drooling, and involuntary movement, were worsening. Tsai therefore joined a growing number of officials calling for Chen to be granted medical bail (保外就醫) and home treatment (居家治療).

What are the merits of such calls? Let us be perfectly clear: Any “solution” to the Chen situation must make legal, medical, and political sense.

Currently, “medical bail” appears to be favored by mainstream opinion and has received bipartisan support. Eleven recently elected and re-elected DPP mayors/county governors declared their support for medical bail for Chen. Legislative Speaker Wang Jin-pyng (王金平) has also stated his support for medical bail. Outgoing Taipei Mayor Hau Lung-bin (郝龍斌) stated his support for such as solution two years ago.

And Taipei Mayor-elect Ko Wen-je (柯文哲), a medical doctor, will continue to serve as head of Chen’s personal medical team. Ko’s position on the matter couldn’t be any clearer. Asked during a national debate with Chinese Nationalist Party (KMT) candidate Sean Lien (連勝文) last month whether he supported the release of the former president, Ko described Chen as no less than a cripple “廢人.” In a recent poll conducted by Stormmedia, 64% of respondents said they supported “home treatment” for Chen.

For those not familiar with the medical-legal system in Taiwan: Under Article 58 of the Prison Act (http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=I0040001), a prisoner is qualified to receive medical bail if his/her medical condition cannot be adequately treated inside his/her current prison facility. The time under medical bail does not count toward sentencing. Medical bail ends after the prisoner’s condition has improved enough to return to prison. Medical bail can also be revoked if the prisoner violates the terms of bail. The rules are quite strict and forbid the prisoner in participating in any non-medical activities. For former president Chen, they would most likely include politics.

One opposing view on medical bail is that of NTU and Harvard Law Graduate and former Department of Justice minister President Ma Ying-jeou (馬英九). President Ma has interpreted medical bail as meaning “medical parole,” describing the situation as 「其實就自由了」,「等於說就是放了」, or “being set free, released.” Ma’s statement certainly has precedent. Under current Taiwanese law, there is no such thing as “medical parole.” Interestingly, if the terms 保外就醫 (“medical bail”) and 國民黨 (Kuomintang, or KMT) are entered into Google, one will come across information to the effect that while under medical bail, a prisoner can nevertheless run in the legislature.

In 1998, former KMT Pingtung County commissioner of Wu Che-yuan (伍澤元) ran for a seat in the legislature while under medical bail, despite charges of corruption. He won, but in 2001 he fled the country after further indictments — again for corruption. (Coincidentally, this is the same Wu whom Sean Lien’s father, Lien Chan, “forgot” he’d lent NT$30 million to in 1998.)

As a physician and psychiatrist, I cannot say with certainty whether former president Chen’s medical condition qualifies for medical bail, because I have not personally participated in his forensic psychiatric evaluation. However, two different medical teams from Taipei Veteran’s General and Taichung Veteran’s General have recommended “home treatment” in their formal diagnostic certificates.

Taichung VGH has furthermore diagnosed Chen with frontaltemporal dementia, a non-reversible medical condition. His other conditions include major depression, severe sleep apnea (surgical treatment was performed in 2013 but news of apnea during sleep in Taichung Prison continue to surface), and Parkinsonism Symptoms, which could account for the tremors seen in TV footage. Although not a formal forensic psychiatric report, it would appear that both diagnostic certificates call for home treatment for Chen. There will always be an opinion that Chen is “faking it” to get out of prison, but then again, there are also people who maintain that they have seen the wheelchair-bound former first lady go to a disco at night.

This week a panel of senior psychiatrists petitioned for medical bail for Chen. The list includes two geriatric specialists, Professor Lai De-ren (Dean of Chung Shan Medical School and chairman of the Taiwan Society of Geriatric Psychiatry) and Dr. Chou Huang-chi (chair of the Taiwan Society of Psychiatry). Also on the list is one of the leading forensic-psychiatry experts in Taiwan, Dr. Yang Tien-wei. The combined experience and expertise of this panel makes their recommendation difficult to question.

I have signed the petition, not just because it has been endorsed by some of my most distinguished peers in psychiatry, but also after considering other solutions for Chen’s situation, which rank from “plausible but with foreseeable barriers” to “Worst. Idea. Ever.”

Prior to this petition, I (along with mayor-elect Ko) had favored a “re-trial.” The questionable legal procedures that Chen has experienced are well documented: calling his three-year-old grandchild as a witness; testimony that afterwards saw a witness be indicted for giving false testimony; denial of bail; “practical influence of position” (實質職權影響力), which has no legal precedent, and so on). A re-trial is just not happening. All appeals have been used, and there simply is no legal channel for a re-trial.

One alternative is 戒護就醫, or medical care outside a prison facility while under the full supervision of the judicial authorities. Under this situation, prisoners are supervised around the clock by judicial personnel during and after transfer to a medical facility. Time under medical treatment counts toward sentencing, and once the condition has been resolved, the prisoner returns to prison.

In 2013, Speaker Wang and Vice President Wu Den-yih (吳敦義) supported such a solution for Chen. In fact, all of Chen’s previous medical treatment has occurred under such conditions, albeit in hospital and for limited duration. If “home care” were implemented for Chen, 戒護就醫 would essentially turn into house arrest, with 24-hour supervision and possibly an electronic tracking device.

The benefit of such a solution is that it is probably more politically palatable to a certain segment of the population that is opposed to any release for Chen. As a compromise, 戒護就醫 would offer slightly less freedoms than medical bail. However, if the search terms 戒護就醫 (“supervised treatment”) and 彰化縣 (Changhua County) are entered into Google, the first result will show that while under full supervision, a prisoner can leave on a one-way trip to China. (In 2009, while under supervised treatment, former KMT Changhua County council speaker Pai Hung-shen [白鴻森] escaped to China. He was extradited in 2010 and is continuing to serve his sentence for corruption).

Unfortunately, I cannot foresee the Ministry of Justice favoring this solution, as they would be indefinitely responsible for the personal wellbeing of former president Chen outside a prison facility. The manpower resources required for such an undertaking would be considerable, and the political fallout from any personal harm (or escape, as there is precedent) that occurs under such supervision would be catastrophic.

A “final solution” for Chen is therefore pardon. I use the term “final solution” because this idea is about as terrible as that other “final solution” we are more familiar with. While there is no medical reason to oppose this solution, I am fiercely opposed to a pardon because of the political implications. If a pardon occurred under President Ma, the message it would send to Chen’s supporters would be that President Ma is “the master of Chen’s destiny” and that “I can put A-Bian in prison, and I can take A-Bian out of prison.” Conversely, if Chen were pardoned under a pan-green administration, it would smack of Victor’s Justice, whereby whoever wins elections dictates who goes to jail and who gets released. In a country that is in desperate need of bipartisan healing, a pardon would be disastrous for any future political cooperation.

On a final note, the KMT appears to have been giving serious thought to medical bail as “a solution to save the party” after its defeat in the Nov. 29 nine-in-one elections. While it is encouraging to see the administration show interest in stopping the medical and human right crisis over Chen’s condition, what is even more interesting — and troubling — is that a purely legal procedure can be influenced by decisions made by a certain political party. Then again, if you enter 法院是 (“the court is”) in Google, the first search result it suggests should not surprise anybody: 法院是國民黨開的.

 

Tony Chiu is a geriatric psychiatry physician in northern Taiwan. A graduate of the National Taiwan University of Medicine, he advocates for the independence of Sanchong District in New Taipei City and the paving of the Taiwan Strait. You can reach him at tonychiupsy@gmail.com. He comments on the PTT board under the handle “IronChef.”

7 Responses to “‘Medical Bail’ for Chen: The ‘Least Bad’ Solution?”

December 09, 2014 at 5:10 pm, TaiwanLawBlog said:

Good points, Dr Corcuff, though I would contend a pardon does not necessarily imply guilt nor is it an affirmation of guilt. Of course, it can be seen that way by society or Ma can condition the pardon on admission of guilt, but it can also be seen as dealing with the punishment and not the original act that led to the punishment, regardless of whether the punishment is just. Many prisoners in the US request pardons based on wrongful convictions because they have exhausted the legal options. That’s why I think framing it correctly if it were to happen (though it doesn’t look like it would anyway) would determine how it is actually perceived by the people.

Reply

December 10, 2014 at 5:44 am, Jack Wong said:

It’s cruel.
But what might be best for Taiwan is President Chen’s martyrdom while in custody.

He is a political prisoner.

His death would showcase KMT’s unjust rule and possibly be KMT’s final nail in its downfall.

Reply

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