Presidential Pardons Must Not Become Bargaining Chips
China Times Editorial (Taipei, Taiwan, ROC)
A Translation
May 13, 2008

The DPP legislative caucus proposes amending the Accounting Law. It wants to use political sleight of hand to spare Chen Shui-bian and his wife from prosecution for the State Confidential Expenses case, by obliterating the distinction between that case and the Government Heads Special Expenses cases. In order to goad KMT legislators into supporting their proposal, the Green camp has demanded passage of the bill within the week. President Chen Shui-bian would then pardon Ma Ying-jeou's secretary Yu Wen before Chen leaves office. When the proposal provoked too much controversy, the Green camp stipulated there would be no preconditions to Chen's pardon for Yu Wen.

Whether some high-ranking DPP official or Chen Shui-bian himself cooked up this illegal and sleazy political quid pro quo, is of secondary importance. What's important is it reveals Chen Shui-bian's anxiety about the inevitable legal consequences once he leaves office.

The State Confidential Expenses case and the Government Heads Special Expenses case are not the same thing. The Special Expenses case involves two points. According to the evidence, Yu Wen harbored no criminal intent when he used false invoices to request reimbursement. There is no disagreement on this point. The only part that is unclear is the part that requires receipts. But according to the letter of the law, everyone is guilty. This is the part that is controversial and does not accord with the rule of law. This is the part of the Government Head Special Expenses issue that requires an amendment. The law should be amended to stipulate that Special Expenses paid to government heads, depending on their duties, require receipts for the estimated expenditure limit. According to the criminal code, once the new law is enacted, it will apply. Naturally such cases will no longer be prosecuted. As to false invoices, the part concerning forged documents was quite clear. Where is the need for a pardon? Are the State Confidential Expenses case and the Special Expenses case really the same? Can they really be equated? Using false invoices to requisition State Confidential Expenses is a criminal offense. Invoking the Special Expenses case to absolve State Confidential Expenses case violators is totally unwarranted.

The motives for the proposed political deal were suspect. If the intention was to amend the law so that a single standard would prevail, then according to existing laws Yu Wen's sentence could no longer be imposed. In which case, why would he need a Presidential Pardon?

This is not all we are concerned about. Yu Wen's offense was forgery. He used a small number of large fake invoices, instead of a large number of small invoices. He did it for administrative expedience. He was not guilty of graft. But the court ruled that he was guilty of forging official documents, therefore he was not entirely innocent. Yu Wen's one year sentence elicited public sympathy. . But that was due to the severity of the sentence. Particularly compared to the "Princes of the DPP," who were treated with kid gloves and who got off scot-free. Public outrage is understandable. Had Yu Wen insisted he was totally innocent, public support for his pardon would have been less passionate. No matter who is president, a commuted sentence or partial pardon for Yu Wen would be understandable. But if one pronounces him not guilty and grants him a presidential pardon, then controversy will be unavoidable.

Above all, the president may not pardon himself. President Chen Shui-bian does have the right to pardon Yu Wen. But absolutely no right to pardon himself. But what difference is there between pardoning himself, and using Yu Wen as a bargaining chip in exchange for a Legislative Yuan amendment that absolves Chen of responsibility for crimes committed? If such a scheme succeeds. then Ma Ying-jeou, who is about to take office, and anyone who follows, will be the biggest beneficiaries. They will be immune from prosecution for major crimes commited while in office. Then on the eve of their departure, they can either pardon themselves or make a political deal and get off scot-free. Anyone who becomes president will be above the law and get away with anything.

Why did someone as smart as Nixon not pardon himself, but instead wait for his successor President Ford to pardon him? How unfortunate, or perhaps fortunate, Taiwan is, not to have its counterpart to Nixon, a politician who knowing he could no longer cover up his crimes, stepped down and thereby received a pardon.

If President Chen Shui-bian is motivated exclusively by legitimate concerns about his presidential powers, rather than selfish motives, he should pardon Yu Wen. Although Yu Wen may be guilty, he deserves compassion. He does not deserve a one year in prison.

Chen can remedy an injustice before he steps down. He can even win public applause and leave a positive final impression. We don't know who proposed this sleazy political quid pro quo. We only know that it was a counterproductive move that left the impression President Chen was eager to reap a private benefit at public expense.

The President enjoys the right to pardon individuals because he is the head of state. The proposal that Chen be let off the hook in exchange for pardoning Yu Wen not only turned Yu Wen into a bargaining chip, it also diminished the stature of the president. Now the fear is that Yu Wen, who had a chance of being pardoned on the merits of his case, will lose that chance as a result of this abortive political deal.

中時電子報
中國時報 　2008.05.13
「特赦」絕不能淪為政治交易的籌碼
中時社論

　民進黨立院黨團提案修正會計法，要和政治稀泥，將阿扁夫婦的國務機要費案，與其他政府首長的特別費案所引發的法律責任一起除罪化；為了使國民黨立委支持此議，綠營一度提出只要本周順利三讀修法，陳水扁總統就會於卸任前，特赦馬英九特別費案中遭到判刑的秘書余文。後來大概是發現爭議太大，又宣稱特赦余文沒有附加條件。

　不論是民進黨高層，還是陳水扁本人，當初會想出這樣一樁有違法理、更欠格調的政治交易，多少透露出阿扁對卸任後難免司法究責一事心急如焚的程度。

　先要講清楚的是，國務機要費案與首長特別費案，並不是一回事。特別費案涉及兩個部分，其中檢據報銷的部分，用假發票報銷，觸犯刑事，屬有無犯罪意圖的事實問題，法律上並無重大爭議；只有領據結帳的那一部分，才有支付屬性不明，單憑行政函令入人於罪，不合法治原則的爭議問題。需要修法解決的首長特別費就是領據結帳的這一部分，應改以法律明確規定，支領特別費的首長，需視其職務需要預估難以取得憑證的支出額度，概以領據方式結帳。新法一經制定，雖係未來適用，但依然符合刑事訴訟上「從輕從新」的法律原則，此類案件自然也就不會再予追究。至於檢據報銷使用假發票的問題，偽造文書的部分本來相當明確，哪有除罪的理由或必要？而且國務機要費與特別費性質是否相同，能否相提並論，很有爭議。使用假發票報帳支領國務機要費的偽造文書問題，本該追究刑責，更無理由依照特別費領據結帳的部分修法除罪。

　原先擬議中的政治交易，居心似有可疑。如果真如所說修法一體除罪，余文判刑部分依現行法律已可不予執行，又何須總統特赦？

　而我們所關心的尚不只此。余文觸犯的是偽造文書之罪，他用假的大額發票取代真的小額發票，圖個行政方便，並沒有犯貪瀆罪，但是法院論以偽造文書罪，並不完全冤枉。確實，余文判刑一年，引起了社會同情，我們就曾率先表示哀憐，但那還是因為情輕法重的緣故，尤其相對於其他政治天王們可以獲得檢方追訴高舉輕放的待遇言之，予人產生「情理」上的不平；從「法律」上言，余文事後若自以為無罪，恐怕原本主張特赦的社會支持也會變得稀薄起來。不管是哪位總統，若是給予余文減刑或是部分赦免，或還說的過去；要是逕以其為無罪而辦理特赦，恐怕難免非議。

　最最不能放過的，則是總統絕不可以利用赦免權力赦免自己的原則。陳水扁總統確實有權特赦余文，但是絕對無權自己赦免自己。然而，不能赦免自己的總統，用赦免余文作為交易籌碼，換取立法院修法將自己可能觸犯的罪責除罪，和使用赦免權赦免自己，又有什麼分別呢？如果此計可以得逞，那麼甫將上任的馬英九先生，還有以後任何擔任總統的人，恐怕會是最大的受益者。他們若是犯下任何滔天大罪，不但在任內可以不受追訴，離職前夕還可動用赦免權赦免自己，或是援例從事政治交易，如此一來，「總統」可就真是無法無天、恣意妄為的職位了！

　假如總統可以這麼做，聰明如尼克森者，當年為何還要由繼任的福特總統給予赦免而自不自我赦免呢？台灣何其不幸，又何其有幸，沒有出過一個自知難掩其罪而自行下台才獲赦免的尼克森總統！

　陳水扁總統若是完全出於總統職權的正當考量，而不是任何自私自利的動機，只因悲憫余文固然有罪，卻罪不至於入監一年，單純地動用特赦權力，在下台前平撫一下社會上為政治弱勢抱屈的不平心理，或可博得許多掌聲，留下一個最後的行善身影。然而不知是誰提出了這樁不堪入目的政治交易，反而顯得陳總統是要以私害公，竟致壞了一件善舉？

　總統所以享有赦免權，是因為身居國家元首的高度。用余文換總統的提議，不僅讓余文淪為籌碼，也把總統給做小了。如今只怕原本可