A Unified Opinion before Any Appeal

A Unified Opinion before Any Appeal
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
August 15, 2007

The Taipei District Court has found Ma Ying-jeou innocent. Conversely, by implication, it has found that Public Prosecutor Hou Kuan-ren twisted the law and engaged in false prosecution. It is time for Ma Ying-jeou to heal his wounds. It is also time for prosecutors to feel shame, acknowledge wrongdoing, and engage in some serious soul searching.

The average person is probably more concerned about whether Ma Ying-jeou is found guilty or innocent. We are more concerned about whether this case has revealed arrogance of power and shameless political bias. Now that the public prosecutor has lost the first instance, he must decide whether to appeal within ten days. We strenuously urge prosecutors to arrive at a uniform opinion on the Discretionary Fund before any decision to appeal, in order to avoid compounding past mistakes.

Hou Kuan-ren refused to work with other prosecutors to arrive at a unified opinion before proceding with the Discretionary Fund case. He went after Ma Ying-jeou on his own. The result was a bizarre prosecutorial "north/south divide." The court has recognized the Discretionary Fund as a "substantive subsidy." Prosecutors however have still not reached a consensus. Hou Kuan-ren continues to sit on the "Four Princes of the DPP" Special Expenses Cases, making zero progress. The presiding judge repudiated Hou Kuan-ren's spin on the Discretionary Fund case. Hou's spin isn't even shared by his fellow prosecutors, many of whom are diametrically opposed. Hou Kuan-ren couldn't wait to jump on the Ma Ying-jeou case. The "Four Princes of the DPP" case meanwhile, has been shoved into the back of who knows what disused file cabinet. Under such circumstances, how can Hou possibly appeal the Ma Ying-jeou case? How can he justify doing so? How can he maintain that his handling of this case bears the slightest resemblance to justice?

Besides, the court's written judgement notes that Hou Kuan-ren committed serious systemic and procedural violations. Systemicaly, as noted earlier, the court upheld the "substantive subsidy" thesis. Procedurally, Hou Kuan-ren's depositions for Ma Ying-jeou and Wu Li-ju were riddled with out of context quotes and leading questions. Therefore they lacked evidentiary force. Prosecutorial solidarity means prosecutors must offer a single standard of justice. All prosecutors must apply the same standards during their prosecutions. Prosecutorial solidarity does not mean that prosecutors should maintain a united front to cover for each others' failings. Prosecutors are supposed to be guardians of justice, not obdient henchmen of a privileged nomenklatura. Hou Kuan-ren's systemic and procedural violations reveal both macro and micro level problems. Prosecutors under Chen Tsung-ming's charge should stop what they are doing immediately. They should reflect on their past behavior, arrive at a consensus, then decide whether to appeal. After all, the prosecutorial system must not rubber stamp Hou Kuan-ren's individual opinions and positions. It must uphold the dignity of the justice system as a whole. Only then can it decide whether to appeal.

The written judgement expressed a number of views worth noting. First, the judge pointed out the public prosecutor's self contradiction. Ma Ying-jeou co-defendant Yu Wen was accused of falsely applying for 50,000 NT in petty cash from the Discretionary Fund. The public prosecutor, in his bill of indictment, wrote "Because the mayor had already verified his figures with his accountants, we had no idea where to begin checking Yu Wen's application for 50,000 NT in petty cash." This revealed that the public prosecutor knew perfectly well how the system worked. That was why he did not investigate any further. It would have been a simple matter for a public prosecutor to investigate Ma Ying-jeou the way he investigated a mid level official such as Yu Wen. In short, the public prosecutor contradicted himself on the Discretionary Fund Case.

The court's written judgement also cites the bill of indictment in the State Affairs Confidential Expenses Case. The court noted that when the same High Court Public Prosecutor's Office Anti-Corruption Center dealt with the State Affairs Confidential Expenses Case, its premise was that such usage "did not constitute criminal intent" and therefore did not dig any deeper than that. The public prosecutor adopted an extremely lenient attitude. The judge cited this as one reason to adopt an equally lenient attitude in Ma Ying-jeou's Discretionary Fund Case. In other words, the written judgement pointed out the discrepancy in the way the public prosecutor dealt with the State Affairs Confidential Expenses Case and the way it dealt with Ma Ying-jeou's Discretionary Fund Case. This of course was exactly what the public had been wondering about all along.

Furthermore, the chief prosecutor in this case could have adopted a different position on the Discretionary Fund. The written judgement mentions procedural problems in the way this case was handled. The prosecutor must face up to these problems and not evade them. One. The written judgment lists in detail discrepancies between witness Wu Li-ju's deposition and the investigation records, in addition to those the defense attorneys noted earlier. The judge's conclusion? The prosecutor's deposition was "riddled with suppositions, failed to wait for the defendant to respond, and treated grunts as answers." The prosecutor's deposition "lacked substance, and took quotes out of context." Two. The public prosecutor claimed that Ma Ying-jeou admitted the "Discretionary Fund was public money." When the judge checked the records however, he found that the public prosecutor was again making all sorts of suppositions while deposing Ma Ying-jeou. Ma Ying-jeou admitted to no such thing. The public prosecutor's bill of indictment did not jibe with Ma Ying-jeou's deposition, and "distorted the defendant's statements in a high handed manner." This constitutes a harsh condemnation of the public prosecutor. Prosecutors must deal with this matter before any appeal can have legitimacy.

As for the Discretionary Fund, the collegiate bench has accepted the "substantive subsidy" thesis. The court's written judgement notes that the Executive Yuan has never clarified the legal status of the Discretionary Fund. Official salaries could not be increased, but everyone still wanted a substantive subsidy. The provision that "Half the expenditures in one's Discretionary Fund account do not require receipts," was an expedient means of providing such a substantive subsidy. As long as officials abided by this rule, they were not in violation of the law. In the judge's opinion the system's established precedents created a legal pitfall. Therefore the system was to blame, and not any individual officials. This was poles apart from Hou Kuan-ren's wild accusations that Ma "resorted to deceit to acquire illicit wealth."

In short, public prosecutor Hou Kuan-ren perpetrated a long list of shocking systemic and procedural violations while prosecuting this case. He obstinately refused to consult with other prosecutors in order to arrive at a unified opinion. He forged depositions. His behavior left onlookers flabbergasted. If the prosecution wishes to appeal Ma Ying-jeou's case, then Hou Kuan-ren must indict the "Four Princes of the DPP." He simply cannot appeal the Ma Ying-jeou case, while refusing to even indict the "Four Princes of the DPP." Even if the prosecutorial system is unable to arrive at a single standard, can Hou Kuan-ren be permitted to apply two sets of standards? Would Hou Kuan-ren have us believe his sole duty is to prosecute the Ma Ying-jeou case? Is he a "single-purpose" prosecutor who has nothing else to do but to "get" Ma Ying-jeou?

According to precedent, if a public prosecutor loses a case in the first instance, he retains the right to appeal. But only if a public prosecutor is fulfilling his duty, not if he is embarked on a stubborn quest for vengeance. We hoped from the very beginning of this case, that prosecutors would engage in self introspection and admit possible mistakes. If in the course of the trial they discovered any systemic or procedural violations, they should not repeat their mistakes, but should acknowledge and correct them. After all, the purpose of the prosecutorial system is not to enable an individual prosecutor to save face. It is to ensure justice by maintaining the integrity of the judiciary. Therefore prosecutors should first reach a consensus. Only then should they decide whether to appeal.

Reaction from the Democratic Progressive Party following yesterday's judgment was intense. Some made "funeral arrangements" for the judiciary. Some snarled "Why don't we just go ahead and exonerate all mainlanders, and sentence all Taiwanese to death?" Make no mistake about it. The Democratic Progressive Party's response to the court's decision was not a declaration that the judiciary had died. It was a declaration that the Democratic Progressive Party wanted the judiciary dead. When presiding judge Tsai Shou-hsun got wind of the DPP's remarks, he smiled brightly and said, "I'm from Hsikou Village, Chiayi County. I'm Taiwanese."

Judge Tsai's casual remark revealed just how absurd politics on Taiwan had become, and the depths to which the justice system had sunk.

先定統一見解 再決定檢方是否上訴
【聯合報╱社論】
2007.08.15 03:25 am

台北地方法院判決馬英九無罪，相對而言，亦是形同認定了檢察官侯寬仁的枉法濫訴。現在是馬英九繫案經年後療傷止痛的時刻，更應是司法檢察當局知恥知病、深切反省的時刻。

一般人也許比較在乎馬英九有罪或無罪的判決，我們則更關切本案所揭露的檢察機關倨傲偏執的惡質。一審宣判，檢察官須在十日內決定是否上訴二審；我們強烈主張，檢察機關應當先對特別費的性質作出統一見解，然後再決定是否上訴，切勿一錯再錯。

侯寬仁拒絕先就特別費的性質作出統一見解，就逕自起訴馬英九，結果演成檢察機關「南北不同調」的怪事；如今法院已認定特別費有「實質補貼之屬性」，但檢察機構迄今非但仍未作出統一見解，且侯寬仁竟將「四大天王」特別費案捏在手中，至今毫無進展。也就是說，侯寬仁對特別費性質之認定，非但已被法官否定，甚至在檢察體系中亦有南轅北轍的異議；而侯寬仁在辦案程序上，馬案辦得迅雷不及掩耳，對「四大天王案」卻迄仍隱匿不發。試問，在這種情勢下，檢察官若要就馬案上訴二審，如何自圓其說，又如何符合司法正義？

何況，就本案而論，法院判決書指出，侯寬仁在實體與程序上皆有重大違誤。實體部分，如前所述，法院採認「實質補貼說」；程序部分，法院則認定侯寬仁對馬英九及吳麗洳的筆錄，皆有斷章取義誘人入罪之處，因此不具證據能力。我們認為，「檢察一體」的精神，應是指全體檢察人員在追求司法正義上的立場是一致的，而絕不是指全體檢察人員不惜枉法濫訴亦應採一致立場，護短到底，擇惡固執到底。檢察機關是司法正義的守護者，而不是嚴守幫規家法的幫派集團。侯寬仁對此案辦到實體程序兩違、宏觀微觀兩失的地步，陳聰明以降的檢察機關實應停下腳步，反省悔過，先定出統一見解，再決定上訴與否。畢竟，檢察當局不能為侯寬仁個人的見解及主張背書到底，而應站到國家司法正義與尊嚴的高度上，再決定應否上訴！

本案判決書中有幾個觀點，值得注意。首先，法官指出了檢察官的自相矛盾，判決書說：馬英九同案被告余文，被控以不實領據支領特別費五萬元充為零用金部分，檢察官在起訴書中亦說「因以市長特別費犒賞核銷之會計程序至此已全部完成，故余文按月領得五萬元後之實際支用情形嗣後均無從稽查」；顯然連檢察官自己也知道領據核銷制度的設計及意旨，故未深入追查。否則，以余文中階官員收入固定，檢察官要像追查馬英九那樣查明該五萬元流向應非難事。也就是說，就馬英九案同一案件而言，檢察官對領據核銷特別費性質的認知，自己就有矛盾。

其次，判決書又引據國務機要費案起訴書而指出：同一高檢署查黑中心偵辦的國務機要費弊案，檢察官認為領據核銷的一半「無違法性認識」、「無不法所有意圖」，並未深入追查，檢察官顯採從寬認定；法官以此作為對馬英九領據核銷特別費應採從寬認定的理由之一。換言之，判決書點明了檢方在國務機要費案和馬英九特別費案寬嚴標準不一的問題，而這正是輿論一再質疑檢方的重點。

再者，本案承辦檢方固可對特別費採不同見解，但判決書中提出的辦案程序正義問題，檢方必須正視，無可迴避。包括：一、判決書詳列證人吳麗洳偵查筆錄和勘驗結果不同的地方，較諸早前律師指出的更多，而法官對檢方筆錄的結論是「問題以理論上的假設性語氣提出，中間應答略去，以嗯對等語助詞為答案」，為「實務上未見，確屬斷章取義」。二、檢察官指馬英九自白「特別費為公款」，法官查對筆錄，認為當時檢察官又是以假設語氣與馬英九對話，馬英九並未自白；檢察官起訴書所載與筆錄不符，是「擅自詮釋被告供述而曲解」。這是對檢察官的嚴厲譴責，檢方當局必須有所處理，才有上訴的正當性。

至於特別費的性質，合議庭採「實質補貼說」。判決書指出，行政院長期未將特別費法制化，原因就是首長待遇無法調高，而欲有所補貼；至於設計一半以領據核銷，正是維持實質補貼的權宜作法；也就是說，依此權宜行事的首長，自然不必承擔違法責任。法官的見解，已與「制度陷阱說」及「歷史共業說」接近；將責任歸諸制度，而非課諸首長個人，更與侯寬仁「利用詐術，盜取財物」的見解迥然而異。

總之，檢察官侯寬仁在本案實體及程序上的違失實在駭人聽聞，始爾拒絕統一見解，繼之筆錄造假，皆屬匪夷所思。倘若檢察當局欲對馬案上訴，則侯寬仁至少亦應就其手中的「四大天王案」迅速結案，總不能說馬案進入二審，但「四大天王案」仍被侯寬仁置於冰箱。如果整個檢察體系不能建立共同標準，但侯寬仁個人總不能也有兩套標準吧，難道侯寬仁是只敢辦馬案、只會辦馬案的「專科檢察官」嗎？

據謂，在過去紀錄中，公訴檢察官一審敗訴，尚無放棄上訴的前例；但這只能是彰顯檢察官的堅持職守，切不可變成檢察官的擇惡固執。我們寄望，自本案開始，檢察體系亦應有自省、認錯的精神，倘在訴訟過程中發現在實體或程序上確有重大違失，即不應一錯再錯，而應迷途知返；畢竟，檢察體系的最高目標，不應是迴護個別檢察官的顏面，而應在追求及維護司法的正義及尊嚴！因此，本案進行至此，檢方當然應該先作出統一見解，再決定是否上訴。

昨日宣判後，民進黨果然反彈強烈。有人為司法「送終」，有人說「外省人就判無罪，台灣人就死了好」。這已是民進黨對司法判決的制式反應，不是司法已死，而是民進黨要司法死。審判長蔡守訓聞此，只是淡淡一笑，慢條斯理地說：「我是嘉義縣溪口鄉人，我是台灣人啦！」

蔡法官自然流露的一語，道盡了政治的荒謬及司法的悲涼。