Selective Prosecution based on Political Affiliation?

Selective Prosecution based on Political Affiliation?
China Times editorial (Taipei, Taiwan, ROC)
A Translation
November 1, 2007

The Special Investigative Unit of the Prosecutor General's Office has decided not to indict former Chairman of the Judicial Yuan Weng Yueh-sheng for misuse of his Discretionary Fund Account. What standards do prosecutorial agencies apply when deciding whom they will prosecute? Once again this has attracted public interest. Every time prosecutors investigate a Discretionary Fund case, their credibility is dealt another blow. This is a serious problem that must be examined.

First we must examine the prosecutors' standards for deciding whether to prosecute. These standards were totally different in the Ma Ying-jeou case, Hsu Tien-tsai case, Frank Hsieh case, Su Tseng-chang case, and Weng Yueh-sheng case. Prosecutors' understanding of the nature of Discretionary Fund have varied widely. What's worse, so have their investigative techniques, which have ranged from indulgent to unrelenting. Objective observers are not convinced that the system works or that defendants have received justice.

Scrutinize the manner in which prosecutors approach their cases, and the double standards become glaringly apparent. Prosecutors refused to indict Hsu Tien-tsai on the assumption that the Discretionary Fund was a substantive subsidy. But this was the local court's judgment in the Ma Ying-jeou case. So why was Ma Ying-jeou indicted? Why weren't Frank Hsieh, Su Tseng-chang, and Weng Yueh-sheng indicted? None of them claimed their Discretionary Funds were substantive subsidies. For public prosecutors to hold different standards prior to local court judgments is understandable. But when local courts concurred with the decision of the Tainan Prosecutors Office not to indict Hsu Tien-tsai, the Special Investigative Unit of the Prosecutor General's Office suddenly adopted an entirely new legal position. The problem of prosecutorial double standards is so serious it needs no further comment.

Prosecutors' standards for deciding whether to prosecute differ not only with each other, they differ with court opinions. Even the same public prosecutor may apply different standards from one case to the next. Look at how relentlessly Hou Kuan-jen prosecuted the Ma Ying-jeou case. His attitude was "Never say die!" Look at the single-minded manner in which he picked away at any disbursements he did not recognize as public, and at unused funds, which he automatically regarded as intended for self-enrichment. He refused to interpret Ma Ying-jeou's charitable contributions as official expenses, and refused to adopt the "Big Reservoir Theory." Not only did he assume Ma Ying-jeou was committing fraud in order to enrich himself, he falsified court records to ensure Ma Ying-jeou's indictment. Contrast this with his indulgent demeanor when he chose not to indict Frank Hsieh and Su Tseng-chang, when he adopted the premise that "Human beings are basically good." He was an entirely different person. He assumed that disbursements requiring receipts were for official use. He interpreted Frank Hsieh's disbursement of funds to his friends as official expenses. The difference in the way Hou handled the two cases was like night and day. Chief Prosecutor Chu Chao-liang of the Tainan Prosecutor's Office prosecuted Hsu Tien-tsai. When the Special Investigative Unit began prosecuting Weng Yueh-sheng, suddenly Chu had an entirely different understanding of the law. Using receipts to account for disbursements was viewed as long-established convention. Once a receipt, along with original proof of purchase, had been submitted and approved, reimbursement was viewed as unnecessary. Nor was anyone who failed to use of the full amount required to return the balance. But if that was the case, why reject the legal opinion that the Discretionary Fund was a substantive subsidy? Why demand that personal disbursements be deducted from the approved total? Why gild the lily? How can the same public prosecutor, prosecuting the same Discretionary Fund cases, apply entirely different legal standards for different defendants? One really has to hand it to them.

What's behind these utterly inexplicable differences in the way identical cases are prosecuted? Is the prosecutorial community morally bankrupt? Are public prosecutors totally untrustworthy? Are prosecutors working hand in glove with the ruling party, targeting designated political figureswith the presidential election in mind? The Special Investigative Unit is investigating cases opened before the unit was established. If it wishes to be perceived as consistent, how can it turn a blind eye to the conduct of public prosecutors? If the Special Investigative Unit adopts standards at variance with legal precedents, won't it be accused of engaging in politically-motivated prosecutions? If the Special Investigative Unit turns a blind eye to public prosecutors who allow themselves to become political tools, who handle cases differently based on the political affiliation of the defendant, aren't they concerned about undermining public confidence in the neutrality of prosecutorial agencies?

The Discretionary Fund case is a long term joint effort. So said Su Tseng-chang, who has been exempted from prosecution. The Discretionary Fund case involves years of established procedure. Weng Yueh-sheng has been exempted from prosecution. Because Weng had already emptied out his Discretionary Fund, how his funds were used was considered no longer subject to investigation. This is how the prosecutor reasoned that an indictment against Weng was not required. Frank Hsieh may also be exempted from prosecution. Only Ma Ying-jeou, who truthfully declared his holdings, who did not withdraw funds from his account to spend or make donations, is being required to provide receipts accounting for his expenditures. One man is being forced to bear the entire burden of punishment meted out by the law. Isn't it obvious that if Ma Ying-jeou were an ordinary citizen and not a leading presidential candidate, he wouldn't be in his current pickle? As long as this suspicion remains, the credibility of prosecutorial agencies and the entire judicial system will remain in grave doubt and impossible to redeem.

How much longer must we endure Taiwan's vicious political culture?

中時電子報
中國時報 　2007.11.01
起訴不起訴標準，真的因人而異？
中時社論

　前司法院院長翁岳生之首長特別費案，最高法院檢察署特偵組檢察官偵結採不起訴處分，檢察機關偵辦特別費案起訴或不起訴的標準究竟何在？再度引起社會關注與質疑，幾乎形成了檢察機關每偵結一起特別費案，公信力就會受傷一次，這背後所突顯的問題，真的值得分析探究。

　首先要說起訴與不起訴的標準。這可以分為幾方面來看，從馬英九案、許添財案、謝長廷、蘇貞昌案到翁岳生案，起訴不起訴的標準大不相同，不但對於特別費的性質認定出入甚大，偵查手法是柔和寬鬆還是鉅細靡遺，也明顯有異，完全無法說服客觀第三者，遑論令被起訴的當事人感到服氣。此是從大角度加以觀察的結果。

　若再進一步檢驗檢方的辦案標準，在許添財不起訴案係採取實質補貼說，與馬英九案地方法院的觀點一致，卻又與起訴馬英九和不起訴謝、蘇、翁均未採取實質補貼說，並不相同。地方法院判決之前，檢察官自有標準，尚有可說。地方認同南檢不起訴許添財的見解之後，特偵組檢察官忽又改採新的見解，檢方標準不一的問題，已經嚴重得無以復加。

　檢方的標準不但相互不同，與法院的見解彼此不同，即使是同一位檢察官的先後辦案標準，竟然也可一再翻異。侯寬仁辦馬英九案的標準何等嚴酷，辦案手法何等鍥而不捨，態度何等不假辭色，嚴格挑撿不予認定為公用的支出，未使用的部分一概視為自肥，不但狠咬馬英九是以詐術圖利自己，還不惜扭曲製作筆錄以坐實馬英九的罪狀；與他在謝蘇案不起訴案中種種與人為善的慈眉善目相比，簡直判若兩人，他對於領據報銷的支出可以一概寬鬆地假設為因公使用，對謝長廷友人的支出款項也可逕予接受為首長的公務花費，對馬英九本人的捐獻則不肯視為公用，也拒採大水庫理論加以扣除，亦不啻雲壤之別？南檢辦理許添財時的朱朝亮檢察長，轉到了特偵組辦理翁岳生案，竟也又有不同的見解，既已認定領據報銷是多年慣例，一旦領據代原始憑證列報即已完成核銷，事後並不要求回報，未用完者也未要求繳回，那又為何捨棄實質補貼見解？又何需再就領據核銷部分去計算總支出減去純私人支出的結餘金額，畫蛇添足，自相矛盾？單一的檢察官，辦的都是特別費案，遇到了不同的對象，可以如此前後不一，真的令人嘆為觀止！

　這許多完全無法解釋的辦案標準歧異，背後說明了什麼？是檢察一體原則的徹底破產？是檢察官辦案能力完全不可信賴？還是顯示了此中確實存在著配合選舉節奏，針對特定政治人物動手動腳？如果這特偵組接手之後是採取了一致標準，對於特偵組成立之前的案件難道就可以不問檢察官的責任？特偵組採取異於前案的標準，發生不利前案的結果，難道就不會被指為特偵組另一種政治手段？對於個別的檢察官出主入奴、因人而異的辦案標準不聞不問，特偵組擔不擔心縱容的結果同樣會傷害檢察機關公正中立的執法信用？

　回到問題原點，特別費案是多年累積的共業，說出這句名言的蘇貞昌已經獲得了不起訴；特別費案件涉及行之有年的實務慣例，翁岳生因此也獲得不起訴；因特別費使用殆罄而不必追查其真正用途，是檢方發明的理論，謝長廷也可因此獲得不起訴；只有如實申報財產，只是未從存入帳戶花用或為捐獻的馬英九，要就領據核銷的特別費，因為遵行既有的慣例，而單獨揹負集體的共業，「匹夫無罪，競選總統其罪」，難道不是一個極易取信的答案？此種質疑一日不能消除，檢察機關乃至司法整體的公信力，就一日會受到嚴重影響而難以復原。

　台灣的政治劣性，究竟還要造業多久？