Wednesday, April 25, 2007

Why not solve the Discretionary Fund Controversy by Legislative Means?

Why not solve the Discretionary Fund Controversy by Legislative Means?
China Times editorial
translated by Bevin Chu
April 25, 2007

The Discretionary Fund case is currently being tried by the courts. What exactly is the Discretionary Fund? Are the Discretionary Funds public funds, or private funds? Ripples continue to spread from the Legislative Yuan over whether the Ministry of Justice has changed its legal opinion.

Should the Legislative Yuan be looking into the Discretionary Fund? If it does so only because Ma Ying-jeou has been indicted, that is not a good reason. The Legislative Yuan should respect the findings of the judiciary. It should not pass legislation tailor-made to help Ma Ying-jeou, just as it should not amend the presidential election laws and change the eligibility requirements to hinder him. The Discretionary Fund issue is not about Ma Ying-jeou individually, or even the hundreds and thousands of administrative heads who have drawn upon the Discretionary Fund in the past. The Discretionary Fund issue is basically a system design issue. It is the Legislative Yuan's responsibility to legislate in strict accordance with standard procedure. The design of the Discretionary Fund system contains defects. An inability to agree on the legal interpretation may lead to an inability to agree on legal responsibility and trial results, creating anxiety among central and local government officials island-wide. Even worse, it could become a political football in the coming struggle for the presidency. The Legislative Yuan has a responsibility to clear the air by returning to the fundamentals.

The Discretionary Fund did not make its debut today. It has no basis in law. It was created by default, by means of administrative orders handed down over the years. It is a bad precedent. The right way, the only way, for a nation under the rule of law, is to establish a system by means of the legislative process. The source of the problem, the cause of the controversy, turns on whether the Discretionary Funds are public funds or private funds,

The Discretionary Fund exists to handle the common needs of administrative heads and other political appointees. Even Legislative Yuan committee members have the same problem. A mixture of official business and private business is unavoidable during a political appointee's official activities. Wedding invitations and funeral notices are the best example. High level political appointees receive countless wedding invitations and funeral notices. On the one hand they are personal matters. On the other hand they are official duties. Prior to disbursement Discretionary Funds are of course public funds. If following disbursement, they are still regarded as public funds, then administrative heads are clearly permitted to use public funds for private purposes. If following disbursement they are regarded as private funds used for public purposes, then they are a form of subsidy or allowance. By its very nature the Discretionary Fund will be used for both public and private purposes. Therefore a rational system should estimate in advance the expenses a particular office is likely to incur, and once the funds have been disbursed, omit the need to provide original itemized receipts. An advance estimate ensures that the funds disbursed will fall within a reasonable range. The system acknowledges that certain officials will incur certain expenses, otherwise it would not allow those officials to draw from the Discretionary Fund in the first place.

The fact is, half the Discretionary Fund requires only the submission of a receipt, a written acknowledgment that a specified sum of money has been received. It does not require original itemized receipts. That this distinction has not been made sufficiently clear constitutes a defect that legislation ought to address. If legislation can replace administrative orders, the defects in the system can be corrected. By contrast, once the Discretionary Fund issue became a high-visibility criminal case, the National Audit Office reacted by engaging in overkill, issuing administrative orders requiring original itemized receipts for all Discretionary Fund disbursements.

Requiring original itemized receipts for all Discretionary Fund disbursements will solve only the National Audit Office Main Accounting Department's problems with the assignment of blame. It neglects the reason for the Discretionary Fund in the first place, a solution to the problem of how to provide funds used for both public and private purposes. Current procedures fail to address this problem.

This problem should be addressed through legislation, because the rules are unclear, and administrative orders lack legitimacy, creating legal pitfalls which should not exist in a country governed by the rule of law. If officials who have received Discretionary Funds find themselves in legal hot water as a result of the duties of their office, this violates the legal principle of "nulla poena, sine lege" (no penalty without a law). The Legislative Yuan cannot solve all cases by means of the legislative process. That is the responsibility of prosecutors. But a Discretionary Fund Law would address the defects within the system and provide a point of reference for prosecutors.

The Discretionary Fund case was triggered by the controversy over the State Affairs Confidential Expense case. Chen Shui-bian drew from the State Affairs Confidential Expense Allowance rather than the Discretionary Fund. There is good reason to examine it for defects as well. The State Affairs Confidential Expense Allowance is for secret official business, and is purely public in nature. It is clearly different from the Discretionary Fund, which is both public as well as private in nature. The problem is that besides needing the State Affairs Confidential Expense Allowance, the president, like other officials, also needs the Discretionary Fund. The system should allow the president to draw from the Discretionary Fund, but it must not allow the State Affairs Confidential Expense Allowance to be conflated with the Discretionary Fund, and must not allow the president to draw from the State Affairs Confidential Expense Allowance as if it were the same as the Discretionary Fund.

Defects in the system have triggered disputes over the prosecution of the Discretionary Fund case These defects must be remedied by returning to the source, by allowing the legal system to repair the legal system. Custom-tailored laws must not be allowed to replace trials. Systemic defects must not be allowed to persist. Legislators concerned about the Discretionary Fund issue need to be clear about what they need to do.

Original Chinese below:

中國時報  2007.04.25
何不藉由立法手段 一次解決特別費爭議

特別費案件正由法院審理中,特別費的性質究竟為何? 在立法院中餘波蕩漾,為了法務部的見解有無變更,特別費是公款還是私款的問題,爭執不休。

立 法院為什麼該研究特別費的性質?如果只是為了馬英九的官司,並沒有正當性。因為立法院應該尊重司法審判,不該針對個案立法,就像是不該為了馬英九繫案而去 修法改變競選總統的參選資格一樣。但是特別費的問題,並不只是涉及馬英九個別的問題,也不只是關係到千百位政府首長過去如何支用特別費的問題;特別費的問 題,根本上是個制度設計的問題。用正統的立法制定適切可行的制度,正是立法院的責任所在。現在特別費的制度設計出了問題,解釋上莫衷一是,還可能因此引發 刑事責任與審判結果的莫衷一是,搞得全國從中央到地方的政府首長人心惶惶,更進一步成為政治惡鬥、搶奪總統權位的賭博籌碼,立法院其實負有很大的責任,正 本清源,是該在制度上做一次徹底的澄清了。


特 別費之所以存在,是要處理行政首長乃至政府其他部門政務層級人員的共通需要,即使如立法院立法委員也有相同的問題。乃就是在政務層級人員的公務活動之中, 有各種公務與私務性質夾雜的開支,無法避免。紅白帖子就是一個最好的例子。高層政務人員會有為數眾多的紅白帖子,一方面是私人的關係使然,一方面也是職務 需要所致。特別費的支領,乃兼含公務與私務的性質。特別費在制度設計上,領取之前,當然是公款;領取之後,如果仍然以公款視之,則無異允許首長以公款支付 兼有私務性質的支出。如果領款之後以私款視之,則其性質亦是一種帶有公務目的,以公務為負擔的私款,也就是一種實質補貼。正是因為此中性質兼含公私,所以 一個合理的制度,應該是預先定期估算每一個職務具有此種性質的花費若干,以概算的方式支領,一旦支用,即不必事後另以單據核銷。因為事前的概算已經確保款 項的使用會落在合理的額度範圍之內,因為制度上必須先已認定相關職務必然會有相關支出的必要,才會容許擔任其職的人支領特別費。

準 此而 言,實務上特別費中半數只須出據領取,不須事後另外檢據核銷的做法,其實就是應該以立法加以落實的制度設計。只要能以法律取代過去的行政命令,制度上的瑕 疵就可以解決。反倒是特別費成為眾所矚目的刑事案件之後,審計部門再以行政命令要求一切特別費都應該實報實銷的做法,乃屬矯枉過正的錯誤處置。要求所有的 特別費實報實銷,其實只能解決審計主計部門的責任問題,卻完全忽略了特別費所以需要存在,兼具公私性質卻又有取據困難的現象,應該有制度上的克服手段。現 在的做法,並不能真正解決相關職務上的需要。

之所以強調現在應該用立法方式正面解 決這個問題,是因為制度設計模糊不清,以及行政命令的位 階過低,製造了一個法治國家不應出現的陷阱。所有領取特別費的政府首長,假如因為實務上的需要而竟致刑罰纏身,是完全違背了罪刑法定主義的精神。當然,立 法院通過立法並不當然可以解決既有的案件,那是審判部門應該處理的問題。但是,適當正確將特別費加以立法,可以用來觀照既有制度的瑕疵,也可提供審判部門 參考。

該附帶一提的是,特別費案件是從國務機要費案件的話題引發的。總統支領國務 機要費而無特別費,其實也有從制度上加以檢討的理由。國 務機要費是為了機密的公務所需,是純粹公用的性質,與特別費的亦公亦私有所不同。問題是總統有國務機要費的需要之外,其實也有特別費的需要,與其他政府首 長並無不同,制度上應該容許總統支領特別費,也不應該不加區辨國務機要費與特別費的性質不同,用領取國務機要費的名義領取特別費。


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