Prosecutors Play Dice with Constitutional Government

Prosecutors Play Dice with Constitutional Government
United Daily News (Taipei, Taiwan, ROC)
A Translation
August 21, 2007

The Taipei Public Prosecutor, in a display of flagrant contempt for due process, has appealed the Ma Ying-jeou case. This is an act of retaliation by a minority of prosecutors abusing the appeals system, treating it as their own private means for revenge. It is also a political conspiracy on the part of high ranking prosecutors to drag the entire judiciary into the presidential election.

Some consider the Discretionary Fund a "substantive subsidy." Others consider it "public funds." Still others consider it "indeterminate in nature." The prosecutorial system can hold any one of these positions. But it cannot hold more than one of these positions. Otherwise how can it possibly provide a single standard of justice? Hou Kuan-jen has been accused of tampering with Ma Ying-jeou's depositions. These are serious charges. Hou Kuan-jen must be subjected to a thorough investigation to maintain public trust in the prosecutorial system. If one or two individuals can declare Hou Kuan-jen not guilty and attack the court's findings, then the appeals system has become the public prosecutors' private instrument for revenge. First: No unified opinion. Second: No internal investigation. These two points alone reveal that the public prosecutor's superiors authorized the appeal without concern for due process. Apparently they have no qualms about shoving the entire judicial system out the door into a political maelstrom.

Prosecutors who refuse to own up to their responsibility as prosecutors, who appeal unfavorable verdicts without regard for due process, clearly hope to turn the appeals process into a political confrontation. The presidential election is seven months away. The presidential inauguration is nine months away. The Taipei Public Prosecutor's Office is desperately buying time. It appealed first, and came up with reasons later. It hopes to turn the appeals process into a constitutional crisis over the verdict and the timing of the verdict. The appeal has become a high stakes political gamble.

Public debate and the District Court's verdict have already made the picture quite clear. The High Court's verdict will soon become obvious. When the verdict will be make public is not so obvious. If the verdict is "not guilty," but not made public until after the election, that will be disadvantageous to Ma Ying-jeou. If the verdict is "guilty," but not made public until after the election, that will be disadvantageous to Frank Hsieh. If Ma is found guilty after registering as a candidate, he will forfeit his candidacy. If Ma is found guilty after he being elected president, he will forfeit his presidency. Under such circumstances, it makes no difference whether Ma is found guilty or not guilty. It makes no difference whether the verdict is made public before or after the presidential election. The election result will be contested, and political unrest will follow.

Double or nothing. That is the prosecutor's attitude. The prosecutorial system has betrayed its professional responsibility. It has failed to clarify the legal status of the Discretionary Fund. It is evading its duty to investigate charges that the public prosecutor tampered with the defendant's depositions. It is playing dice with the justice system and the nation's welfare. These prosecutors may think they are gambling only with their own legal reputations and political futures. In fact they are gambling away the nation's system of criminal justice and constitutional government.

As they see it, their high stakes gamble favors the prosecutorial system. The appeals process has many possible outcomes. Only one, being pronounced not guilty before the election, will be advantageous to Ma Ying-jeou. All other outcomes: being pronounced guilty before the election, being pronounced not guilty after the election, being pronounced guilty after the election but before assuming office, are disadvantageous to him. In other words, an appeal may not be able to bring down Ma Ying-jeou by means of the criminal justice system. But it may be able to bring down Ma Ying-jeou by means of the electoral system. In their eyes, the appeals process is not just a legal struggle, it is also a political struggle. Forcing the collegiate bench into the maelstrom of the presidential election mires Ma Ying-jeou in a political deadlock.

The prosecutorial system must first fulfill its professional responsibilities by reaching a unified opinion. It must fulfill its disciplinary responsibilities by conducting an internal investigation of Hou Kuan-jen. If the prosecution files an appeal after that, it may do so honorably and forthrightly. But it has not reached a unified opinion. It has not conducted an internal investigation. It has heedlessly and arbitarily filed an appeal. This is the behavior of triad thugs bent on revenge. This is the behavior of political opportunists willing to precipitate a political bloodbath to hide their own shortcomings. In order to prosecute a political enemy over a Discretionary Fund whose status remains indeterminate in nature, in order to shield a controversial Hou Kuan-jen, they are willing to gamble the nation's system of presidential elections and constitutional government. "Bad faith" does not begin to describe what is in their hearts.

The gaming table has two ends. At one end sits Hou Kuan-jen. who from the very beginning has politicized the Ma Ying-jeou case, and debased himself by becoming a political goon for his superiors in the prosecutorial system. At the other end sits the nation's system of criminal justice, constitutional law, and free and fair elections. So let's place our bets. So let's roll the dice. If the judiciary can bet against Chen Shui-bian and Wu Shu-chen, it should have no trouble betting against Hou Kuan-jen and Chen Tsong-ming.

憲政豪賭：馬案二審的幾種排列組合
【聯合報╱社論】
2007.08.21 03:05 am

台北地檢署未經正當程序，逕就馬案提起上訴。這是少數檢察人員濫將訴訟制度當作個人報復之手段，亦是相關檢察上級蓄意要將整個司法體制捲入總統大選漩渦的政治陰謀。

特別費的屬性出現爭議，有認係「實質補貼」者，有認係「公款」者，亦有認係「屬性不明確」者；檢察體系固可持任何見解，但不能不對內統一見解，否則如何稱「檢察一體」？至於對侯寬仁涉及製作不實筆錄，亦應進行內部調查，以昭公信；倘若只憑一二人即可私自認定侯寬仁沒錯，並火速上訴來攻擊司法審判，則訴訟制度豈不成了檢察官個人的報復工具？僅看上述二點，一未統一見解，二未內部調查，相關檢察上級自屬並未善盡正當程序即批准上訴，不啻欲將整個司法體系捲入不堪設想的政治漩渦。

這些拒問檢察體制自身責任、亦拒經內部正當程序即提起上訴者，顯然是欲將上訴操作成一場政治豪賭。此時距總統大選尚有七個月，距總統就職亦有九個月；北檢於第一時間，在「後備理由」的倉卒狀態下火速上訴，用心即在爭取時間，欲強逼二審陷於「判有罪／判無罪」及「選前判決／選後判決」的憲政困境中。亦即，馬案二審已成了一場政治豪賭。

其實，本案經過輿論激盪，及一審推敲，已是脈絡分明；因而，二審應當很快就能形成「有罪／無罪」的心證，難處是在「選前判／選後判」。例如，若二審的心證是「無罪」，卻延至「選後判」，將不利馬英九；倘「有罪」，亦延至「選後判」，則不利謝長廷。何況，馬若在完成候選登記後被判有罪，將喪失候選資格；若當選，卻在選後至就職前判有罪，亦將喪失當選資格。事態至此，無論就「判有罪／判無罪」及「選前判／選後判」作出何種排列組合，皆將形成大選爭議及政治風潮。

賭輸加碼，這是檢察體系此刻的心態。檢察體系自棄釐清「特別費屬性不明確」的專業責任，又迴避對檢察官筆錄造假進行風紀調查，竟然逕自一腳就將整個司法體系與整個國家踢進一場政治賭博。這一小撮檢察人員，只是賭他們個人的法律見解與政治評價，但整個司法正義及憲政安全，卻也已被他們逼上了賭桌，淪為社會共業的賭注。

上訴者的眼中，這場豪賭的贏面似在檢察體系。在二審判決的各種排列組合中，唯有「無罪／選前判」一種模式，對被告馬英九有利；其餘，「有罪／選前判」、「無罪／選後判」，及「有罪／選後至就職前判」等排列組合，皆不利馬英九。也就是說，上訴者即使不能在司法上立即擊垮馬英九（如「有罪／選前判」），亦可能在政治上拖垮馬英九（如「無罪／選後判」等）。在上訴者眼中，上訴不只是訴訟動作，更是政治鬥爭；逼二審合議庭捲入總統大選的風暴，亦逼馬英九陷於各種排列組合的二審政治僵局之中。

如果檢方先統一見解，善盡了專業責任；及先對侯寬仁作過內部調查，善盡了風紀管制；則檢方此時上訴，即是正大光明的舉措；但一未統一見解，二未內部調查，卻蠻橫粗暴地上訴，這就不啻是幫派報仇的行徑，亦即是不惜掀起政治鬥爭來為自己遮醜護短。檢察當局為了一個「屬性不明確」的特別費，為了一個極具爭議性的侯寬仁，竟將攸關整個國家安危的總統大選及憲政正義率爾推上了政治賭桌，這又豈僅是居心叵測而已？

在這張賭桌的兩頭，一頭是自始就將馬案政治化的侯寬仁，及淪為政治打手的檢察上級；另一頭則是司法正義及總統大選所涉憲政公義。豪賭吧，下注吧，司法既能與陳水扁及吳淑珍對賭，則被迫與侯寬仁及陳聰明對賭亦非意外！