Wednesday, April 4, 2007

The Chief Prosecutor's Conference must offer a Unified Opinion on the Discretionary Fund Case

The Chief Prosecutor's Conference must offer a Unified Opinion on the Discretionary Fund Case
United Daily News editorial
Translated by Bevin Chu
April 04, 2007

Ma Ying-jeou's Discretionary Fund trial has been just been convened. Because the Tainan Public Prosecutor and the High Court's Anti-corruption Center have submitted legal opinions on the case as different as night and day, and because Ma Ying-jeou and his defense attorneys will be citing these opinions, they will become major bones of contention. In order to ensure a fair trial, the prosecution must quickly resolve these radical differences.

Hou Kuan-jen of the High Court's Anti-corruption Center has indicted Ma Ying-jeou for embezzlement, citing "the abuse of official authority to obtain wealth through deception." The Tainan Public Prosecutor's office meanwhile, has indicated that in the Hsu Yang-min and Hsu Tien-tsai cases, years of administrative precedent make it impossible to find the accused guilty of "the abuse of official authority to obtain wealth through deception." Nor is it possible to find the accused guilty of "criminal intent." Therefore, given the disparity in the legal opinions offered by the two prosecutors' offices, a unified opinion is essential.

Prosecutor General Chen Tsung-ming has said that he will convene a Public Prosecutor's conference in order to arrive at a unified opinion. At the same time however, word has spread of a sudden and massive reshuffling of chief prosecutors. The timing of the reshuffling is suspicious. The reasons offered are unpersuasive. The reshuffling dispenses with due process. The public is aware that the ruling regime is displeased with the Tainan Public Prosecutors' legal opinion on the Discretionary Fund case. Can it be that the ruling regime intends to manipulate the results of the upcoming Chief Prosecutor's conference?

Once the ruling regime succeeds in seizing control, the Chief Prosecutor's conference will endorse the "guilty" finding of the High Court Public Prosecutor's Office Anti-corruption Center. Whether the court will accept such a finding remains unknown. But the inevitable result will be that the case prosecutor will receive a shot in the arm, while Ma Ying-jeou's political road will become increasingly arduous. Public prosecutors at the grass roots have yet to rally against the Ministry of Justice, and the reshuffling of chief prosecutors has yet to be implemented. Future developments are hard to predict. But for court cases to be subject to such flagrant political interference, has already put the nation to shame.

On the other hand, if the upcoming Chief Prosecutor's conference endorses the Tainan Public Prosecutor's "not guilty" finding, this may amount to a severe test of the prosecutor's moral courage. As this newspaper's editorials have concluded, if the conference endorses the "not guilty" finding, the fairest way of handling the matter would be for the Taipei Public Prosecutor's Office to withdraw its indictment against Ma Ying-jeou. But this will surely lead to political unrest and political protests. Whether the case prosecutor will resist orders from above we cannot know. The pressure to submit will surely be great. However, if the case prosecutor adopts a unified "not guilty" opinion, yet persists in indicting Ma Ying-jeou for embezzlement, and burdens him with the stigma of criminal prosecution, it will amount to a travesty of justice.

What's more, the ruling and opposition parties are currently holding their presidential primaries. Yet Eric Chen of the High Court Public Prosecutor's Anti-corruption Center informed the media that the reason he did not simultaneously investigate the Discretionary Funds of the "Four Princes of the Democratic Progressive Party (DPP)" was to avoid influencing the DPP's presidential primaries. Ma Ying-jeou is not necessarily the Kuomintang's presidential candidate. He must first undergo the party's primary nomination procedure. In order to avoid influencing the DPP's presidential primaries, Eric Chen sat on the Discretionary Fund indictments of the "Four Princes of the DPP" and refused to prosecute. Yet together with Hou Kuan-jen, Chen rejected the Tainan Public Prosecutor's request that the two cases be prosecuted simultaneously. Chen insisted instead on indicting Ma Ying-jeou in advance. Could it be that Chen intended to influence the KMT's presidential primaries? Today, Ma Ying-jeou stands accused of embezzlement. Rivals within the KMT can use the fact that a candidate may be ineligible due to a criminal conviction as an excuse to boycott the primaries, sending the KMT into confusion. This, without a doubt, is the result of public prosecutors' contempt for due process.

Furthermore, the Special Investigative Unit has already been established. The Anti-corruption Center has been disbanded. Their cases have been turned over to the Special Investigative Unit, and Hou Kuan-jen and Chu Tsao-liang of the Tainan Public Prosecutor's Office have been made members. Some feel that once the cases of the "Four Princes of the DPP" are turned over to the Special Investigative Unit, Hou Kuan-jen should continue his investigation for the sake of consistency. If Hou Kuan-jen does continue investigating the "Four Princes of the DPP," he probably won't dare to apply double standards in order to avoid outside attacks. But if we consider the case on its own merits, if the Discretionary Fund case was never actionable to begin with, the case prosecutor should admit his mistake and withdraw the charges against Ma Ying-jeou, instead of dragging in other political figures to be buried along with him. Therefore, the prosecutor must, as quickly as possible, offer a unified legal opinion and arrive at a consistent conclusion. Only then will their handing of this case conform to the demands of justice and safeguard human rights.

The Ma Ying-jeou case is already in progress. This manner in which this case is tried, the manner in which public prosecutors are reshuffled, the conclusions the Chief Prosecutors' conference reach, the manner in which the Special Investigative Unit investigates other Discretionary Fund cases, and even the manner in which the ruling and opposition party primaries play out, will each affect one another, resulting in a complex interaction between law enforcement and politics. A perfect solution will be hard to come by. One can only hope that judges and prosecutors will appreciate the heavy price the nation and society have already paid, and handle this case in the fairest possible manner, in order that fairness and justice may prevail.

Original Chinese below:



高 檢查黑中心侯寬仁起訴馬英九貪汙治罪條例「利用職務詐取財物罪」,南檢則在許陽明和許添財的特別費案中,表明依特別費多年來的申領行政慣例,既不能認定有 「利用職務詐取財物罪」中的「詐取財物」構成要件,亦無法指稱相關首長有犯罪故意。在南檢的見解下,甚至「不需單據」的一半特別費是否花完,也不構成有無 犯罪的區別。因此,在南北歧見中,統一見解極為必要。

檢察總長陳聰明已表示將召開 檢察首長會議,討論統一見解。然而,就在此際,卻又傳出法務部突兀且強硬地大幅調動檢察首長;時機如此敏感,調動理由又不具說服力,且連程序正義都棄置不 顧,而社會上則盛傳執政者對南檢的特別費見解極為不滿,難道是執政者有意操控未來檢察首長會議對特別費案的結論嗎?

倘 若如此,一旦執政者操控成功,檢察首長會議採高檢查黑中心的「有罪說」,法院是否接受固仍屬未知數;但公訴檢方的氣勢必高漲,而馬英九的從政之路更為艱 辛,則是必然的結果。如今,因基層檢察官群起抗拒法務部,檢察長的調動尚未實現,未來的發展難以逆料;但司法案件受到如此嚴重的政治干擾,已足令國家蒙 羞。

反之,倘若未來檢察首長會議結論採南檢的「無罪說」,則檢方有無貫徹執行的道 德勇氣,就是嚴格的考驗。本報社論曾探討過,一旦採無罪說,最公平的處置就是台北地檢署撤回對馬英九的起訴,但這必將引起政治風潮抗爭,公訴檢察官是否從 命亦不可知,難度誠然不低。然而,檢方統一見解後若採無罪說,卻仍然讓馬英九陷於貪汙的指控,受到審判的牽累,無論如何都是司法正義的矛盾。

更 有甚者,朝野主要政黨均正進行黨內總統初選相關活動。而高檢查黑中心陳瑞仁檢察官竟向媒體表示:民進黨參與競爭的「四大天王」特別費案未同步偵結,是避免 影響民進黨總統初選云云。然則,馬英九亦非國民黨必然的總統候選人,其亦須完成黨內初選提名程序;陳瑞仁為考慮不影響民進黨初選,而壓著「四大天王」特別 費案不辦,卻與侯寬仁力斥南檢協調意見的要求,堅不同意同步偵結,必欲早日起訴馬英九,難道是有意介入國民黨的黨內初選嗎?如今,馬英九受審,國民黨內競 爭對手以可能判有罪使國民黨失去候選人為由,拒絕初選,致國民黨亂成一團。這無疑是檢察官辦案不顧程序公平的政治後果。

再 者,特偵組已經成立,查黑中心解散,案件移交特偵組,而侯寬仁與南檢的朱朝亮均是特偵組成員。有人認為,民進黨四大天王案移交特偵組之後,應由侯寬仁繼續 偵辦,以求標準一致。按理,若侯寬仁真的續辦民進黨四大天王案,為避免外界抨擊,當不致出現不同標準;但就事論事,若特別費案根本不應處以刑責,檢方就應 坦然認錯而撤回對馬英九的起訴,而非拉其他政治人物陪葬。因此,檢方應當儘速統一法律見解,並落實結論,始能符合公平正義並保障人權。

馬 案已經開始審理,而本案的審理過程與檢方人事調動、檢察首長會議的結論,特偵組對其他特別費案的偵辦,乃至朝野政黨的初選時程等等,皆將相互影響,形成司 法與政治錯綜複雜的關係。欲求萬全恐怕已很困難,唯願法官和檢察官能體察國家社會已付出和將付出的重大代價,以最公正的態度處理本案,使公平正義得以體 現。

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