‘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

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.

5 thoughts on “‘Medical Bail’ for Chen: The ‘Least Bad’ Solution?”

  1. I truly feel sorry for President Chen. However, any solution does have to be fair. If Chen was not a former president (and just a regular prisoner) would we even know about his situation? Chen should not be treated better or worse than any other prisoner in a similar situation.

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  2. Also, I don’t agree with your assessment regarding a pardon from President Ma. Ma didn’t put Chen in prison, and one could argue that it would be a great bipartisan gesture for Ma to pardon him. However, I don’t think Ma would do it because it would be highly unpopular within his own party.
    As I said in the previous comment, Chen should be treated as any other prisoner in a similar situation would be treated. Would a pardon even be considered if he hadn’t been president?

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  3. A cautious and informed reflection on a sensitive issue. I would like to add my two cents to the moderate remarks above. The question of a special treatment comes to everyone’s mind indeed. It’s is perfectly legitimate and adds a philosophical dimension, which is welcome. At the same time, I’m wondering: Chen is not, by the facts themselves, a common prisoner. He served his country for eight years, under tremendous pressure, ie: bravely, I dare to say, like his predecessors and his successor. In this, the question of how to evaluate his action as President is not a case in the point : he has been a head of state, and ruled the country democratically, period. Isn’t this de facto makes him indeed a not-‘normal’ prisoner? Second question: if Taiwan’s prisons function correctly, supposedly all ‘common’ prisoners should be detected when there medical condition gets that bad, and appropriate measures should be taken. Should the fact that it is not the case be retained against Chen to deny him a special treatment congruent with his health? His being under attention gives him a chance – if the word is appropriate here – to be given an appropriate treatment in terms of medical parole, and in this case, instead of asking ourselves wether it is fair to give it to him and not others, we should rather ask, is it fair to deny it to many, and should we deny it to him just because it cannot be given to everyone? Pure equality is, regrettably, a lute in our world. And we should not, just because people are not always treated equally in every situation, reinforce inequality by keeping too straight and rigid. And let’s be pragmatic: the deteriorating condition of Mr Chen, attested by an official report by the 監察院 last summer, leads me to a final question: it is apparently so clear that on day, it will be a matter if survival, if not if dignity, to treat him properly, comprehensively. So why should Ma wait until it becomes an embarrassment so widely known to the world (having a former President dying in the jails of a democratic Taiwan) and so bad for Taiwan’s image? In addition to the author’s medical and legal approach, and to the commentators’ moral questions, I would like to add the geopolitical dimension. Taiwan certainly does not need this kind of bad publicity. And this, not to mention the human rights of Mr Chen. If he is a common prisoner like all, perhaps then his trials should also have been led as any trial of any ‘common’ suspected criminal. And this was not the case. In the end, he is a special case, which needs a special reasoning.

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  4. Great article – the first one I’ve seen to lay out the situation succinctly in English. I respectfully disagree that “a pardon would be disastrous for any future political cooperation” A pardon is supposed to let bygones be bygones and show that despite the partisanship and political bickering in the past, all is forgiven and everyone can move forward. There’s nothing more bipartisan than a KMT president rising above politics to pardon a DPP president, and it would have given Ma some political capital and generate goodwill from the DPP, leading to, if not political cooperation, at least less vitriol.
    That said, pardoning Chen now is too late for Ma’s legacy. However, I believe that if he can be somewhat articulate about his reasons and frame it as part of the KMT’s reforms, a pardon can still help his party after the disastrous elections.

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  5. I think the general reason behind general unease at a pardon, is that a pardon is per se confirming the status of the prisoner as being guilty – which is OK if the case is clear and has been dealt with in a way that no one challenges. In other democracies, pardon is already often debated as a form of extra legal power granted to the head of state (even though such extraordinary legal power is legally bount by constitutions), but the challenge to the power of pardoning is not as complex abroad as in Mr. Chen’s case. As you know, TaiwanLawBlog, not everyone in Taiwan and beyond views as fair and right the whole legal process that led to the imprisonment of Mr. Chen. It is thus easy to forecast that those who challenge the fairness of this series of judgements will not see a Presidential pardon as a superb bipartisan moral courage, but rather as a terrible prospect for them: “pardoning” Mr. Chen is, in a subtle way, like rejudging him in just a few words (“I grant him my Presidential pardon”) just to confirm his being guilty; it blocks ipso fato and forever any possibility of reopening the case (which, again for such persons, should be reopened and rejudged); and it gives the one who grants the pardon an aura of mercy and empathy that looks like indigestible for those who support Mr. Chen, cinsidering the image they have of Mr. Ma. It is very unlikely, thus, that any such decision, if taken by the President, will reach a consensus. How complex is this issue! We can see it right from here: if Mr. Ma finally pardons Chen, there will be still many to criticize him for doing this, doing it this way, and this late. The Chen case may well still remain for long a complex issue for the KMT, and not only for the DPP.

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