Sunday, March 18, 2007

Opposing Views on Ma Ying-jeou's Discretionary Fund Case

Opposing Views on Ma Ying-jeou's Discretionary Fund Case
United Daily News editorial
translated by Bevin Chu
March 18, 2007

The only stable state is the one in which all men are equal before the law
-- Aristotle (384 BC - 322 BC)

Comment: As Aristotle noted, the only stable state is the one in which all men are equal before the law. Conversely, any state in which men are unequal before the law, is ipso facto, an unstable state.

And so it is with the Taiwan region of China. Taiwan under today's Taiwan independence Green Terror is an unstable state. On today's Taiwan, there is no black and white, there is only blue and green (mei you hei bai, zi you lan luu), meaning that under Pan Green misrule, there is no right or wrong, there is only one's political coloration.

To wit, the trumped-up charge against Ma Ying-jeou for "embezzlement."

Ma Ying-jeou, after being indicted on trumped-up charges of embezzlement by Deep Green inquisitor Eric Chen

Now I am not a "Ma mi" (a fan of Ma Ying-jeou). I am the farthest thing from a "Ma mi." I have no trouble whatsoever believing any number of unflattering accusations leveled against Ma Ying-jeou, including the charge that he lacks the necessary spine to defend Pan Blue political values.

But embezzlement?

Please, spare me!

No, Ma Ying-jeou is Mr. Clean. The only reason he has been indicted by a Deep Green hatchet man, is that he is a deadly threat to continued Pan Green rule in 2008.

Public Prosecutor Eric Chen's laughably Orwellian poster reads: "Eric Chen, Conscience. A Solomonic legal judgment. We are willing to wait. We are willing to believe. A pro-democracy activist in his youth, non-partisan, concerned only with right and wrong, unconcerned with political coloration, from start to finish, a public prosecutor concerned only with justice"

Hou Kuan-ren, Eric Chen clone

Opposing Views on Ma Ying-jeou's Discretionary Fund Case

United Daily News editorial
translated by Bevin Chu
March 18, 2007

Regarding the provision that "Half of the expenditures in one's Discretionary Fund account do not require receipts," the court's rulings in the Two Hsus case and the Ma Ying-jeou case are like night and day. Eric Chen of the High Court Public Prosecutor's Anti-corruption Center said that as long as one spends all the money, then one is in the clear. Although Chen Ming-chin of the Tainan Public Prosecutor's Office agreed that the Two Hsus had indeed spent all the money in their Discretionary Fund account, he also went to great lengths to point out that making use of this portion of the Discretionary Fund account did not fit the definition of "embezzlement and fraudulent acquisition of wealth," nor did it constitute criminal intent.

In other words, according to the above standard, even if the Two Hsus' Discretionary Fund case had been the same as Ma Ying-jeou's case, and the Two Hsus hadn't spent all the money in their accounts, they would still not be subject to indictment. This is the biggest difference in the legal opinions offered by the two prosecutors. If we examine the manner in which the "Half of the expenditures in one's Discretionary Fund account do not require receipts" clause has been observed in real life over the past 30 years, we should have no trouble determining which of the two opinions shows greater respect for reality and conforms more closely with the public's understanding of the law.

First, let's examine the provision that in order to be charged with embezzlement, one must "take advantage of opportunities provided by one's office to obtain funds through deceit," and in doing so cause the deceived party (in this case accounting personnel) to authorize the funds in question. In order to charge Ma Ying-jeou with this crime, it is necessary to prove not only that Ma Ying-jeou resorted to deceit, but also that accounting personnel were deceived.

In his bill of indictment, Public Prosecutor Hou Kuan-ren accused Ma Ying-jeou of "knowing perfectly well that he had used receipts to apply for special expenses at the beginning of the month, and had assured accounting personnel that in the coming days disbursements would be made. Based on such a belief, accounting personnel were willing to make advance payments at the beginning of the month." But in January 2004, the system was changed to payment in the middle of the month. That was when "Ma Ying-jeou informed accounting personnel that he had already made disbursements. Accounting personnel, based on such beliefs, authorized advance payments." This is what Hou Kuan-ren considers damning evidence of "deceit" on the part of Ma Ying-jeou and incontrovertible evidence that accounting personnel "were deceived."

In the Two Hsus case, which also involved payment of special expenses at the beginning of the month, Public Prosecutor Chen Ming-chin of the Tainan Public Prosecutor's Office solicited opinions and reports from the Ministry of Audit, the Executive Yuan, and the Legislative Yuan, as well as historical precedents.

He arrived at a very different opinion of this administrative procedure. He pointed out that "The defendant evinced no intent to deceive. The accounting personnel performed their duties in accordance with normal procedure and did nothing wrong. As far as this kind of administrative procedure is concerned, any effort to accuse the defendant of attempting to deceive accounting personnel, or of making false assurances to accounting personnel regarding future disbursements, will inevitably give people the mistaken impression that one is either fixated on an unwarranted conclusion or attempting to frame the accused."

According to the High Court Public Prosecutor, everyone has followed standard operating procedure for years, with the sole exception of one particular defendant who has "continuously taken advantage of the opportunities afforded by his official duties to practice deceit, forcing accounting personnel to make improper payments, resulting in criminal conduct." But Public Prosecutor Chen Ming-chin of the Tainan Public Prosecutor's Office believes that such accusations amount to being "fixated on an unwarranted conclusion or attempting to frame the accused." The Tainan Public Prosecutor and the High Court Public Prosecutor's views are diametrically opposed. So which view accords more closely with the facts? Perhaps we should consult administrative officials throughout the nation and their accounting departments.

Again, let's look at the question of criminal intent. Eric Chen and Hou Kuan-ren accused Ma Ying-jeou of "resorting to deceit and getting accounting personnel in trouble" by improperly authorizing funds. They also accused Ma Ying-jeou of "harboring clear criminal intent." As for Ma Ying-jeou's repeated declarations that "he believed the funds were private funds and not public funds," they were dismissed as denials of guilt without any credibility.

Public Prosecutor Chen Ming-chin of the Tainan Public Prosecutor's Office believes that "Historically speaking the Discretionary Fund has been interpreted loosely. Real world practice has established the administrator's Discretionary Fund as a form of supplemental income. As long as the official substitutes receipts for original certificates, the relevant auditing units have no further need for verification procedures. Since verification is already complete, there is no question of returning any balance. Based on this premise, whether the special expense allowance has become a disguised form of official salary, resulting in a situation in which an official may not recognize the special expense allowance as illegal, remains a question. The defendant's criminal intent is something the public prosecutor will find difficult to prove. Nor is the public prosecutor likely to have enough material evidence to prove that the Discretionary Fund is not supposed to be a form of supplemental income." Such a perspective is diametrically opposed to Hou Kuan-ren's.

Perhaps the question of criminal intent is going to be a case of "'Sez you, sez me." Given the same facts, different public prosecutors or judges may arrive at different conclusions. But Public Prosecutor Chen Ming-chin of the Tainan Public Prosecutor's Office said that the special expense controversy is obviously the result of a defect in the system. Based on the principle that laws must be clear and "nulla poena sine lege" (no penalty without a law), one cannot force the administrator applying for funds to assume all the risk. When there is little reason for suspicion, and the law is unclear, the accused must be given the benefit of the doubt. This surely was Chen Ming-chin's reasoning. High Court Public Prosecutor Eric Chen and Hou Kuan-ren may insist that there is abundant reason for suspicion, but if that truly is the case, why didn't they indict the so-called "Four Princes of the DPP" (the four political stars of the Pan Green camp, Su Tseng-chang, Frank Hsieh, Annette Lu, and Yu Hsi-kuen), based on the same set of standards? This is the most egregious defect in terms of due process and real world justice.

Did Ma Ying-jeou obtain special expenses by means of deceit? This seemingly simple question has elicited diametrically opposite answers from two public prosecutors.

Original Chinese below:



也 就是說,根據此一標準,即使二許的特別費在「不要單據的一半」,就像馬英九一樣被檢察官認定沒有花完,也不會被起訴。這才是兩地檢方在法律見解及適用上最 大的差異。參照三十年來「不要單據的一半特別費」之申領情形,比較這兩種不同的見解,當可看出何者更貼近事實,亦即何者較能獲得國民的法律感情的認同。


侯 寬仁檢察官在起訴書中指馬英九「主觀上明知月初以領據請領特別費,其實已向會計人員承諾來日會有支出之事實,而會計人員亦基於此種確信,始願於月初先行支 付」,而九十三年一月起改為月中領取,亦是「馬英九向會計人員表示已有支出事實,會計人員亦基於此種確信償其墊款」。這就是侯寬仁所認定的馬英九施行「詐 術」,及會計人員「受騙」而交付財物的犯罪要件。

同樣是月初具領的二許特別費案, 南檢陳明進檢察官在考察審計部、行政院以及立法院等各方的意見和報告,以及歷年的慣例後,對這樣的行政流程卻作出不同的評量,他指出:「……被告無任何積 極施用詐術之行為,會計人員依例行事,亦無任何陷於錯誤情事……針對此種行政運作模式,強行擬制為被告有向會計人員施用詐術,即向會計人員詐稱未來必將如 何使用的承諾,不免令人有牽強附會或羅織罪名之誤解。」

高檢將這種行之有年、眾人 皆遵照辦理的行政流程,謂為某一被告「連續利用職務上機會使用詐術,使會計人員陷於錯誤交付財物,而構成犯罪」;但南檢的陳明進檢察官卻認為,倘作此種指 控,不啻「牽強附會、羅織罪名」。南檢與高檢的觀點南轅北轍,何種見解較符合事實?恐怕要問問全國的首長,以及各單位的會計人員了。


南 檢陳明進檢察官對這個問題則認為:「……歷年沿革特別費採寬鬆認定……實務上幾已定性為首長實質薪資補貼,首長主觀上亦多認為係實質薪資補貼……只要機關 首長以領據代替原始憑證列報後,相關審計單位並不需要再進行實質核銷手續,如既已完成核銷,則應無事後繳回與否之問題……在此前提下,是否有成為變相補貼 首長薪資之一部分,而造成首長對此是否具有違法之認知,不無疑問……被告主觀犯意檢察官難以舉證,檢察官亦無足夠實務資料,可以證明特別費完全沒有實質補 貼之性質……。」此種觀點,又與侯寬仁的見解完全相反。

主觀犯意問題,恐怕是見仁 見智;同樣的案件事實,不同的檢察官或法官也許認定結果不同。但南檢陳明進檢察官說,關於特別費領用發生的爭議,顯見制度之瑕疵,本於「法明確性」和「罪 刑法定原則」,不能全然讓領用首長承擔風險。罪疑惟輕,法律不明確時則朝對被告有利的方向推闡,應當是南檢陳明進作此決定的考慮;而高檢陳瑞仁和侯寬仁要 「罪疑惟重」亦無不可,但他們竟然未將其手中四大天王等案以同步、同標準處理,則在程序正義及實質正義上兩皆有虧,是最大的汙點。


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