President Ma Should Promptly Declassify the State Confidential Expenses Case Files

President Ma Should Promptly Declassify the State Confidential Expenses Case Files
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
July 18, 2008

The High Court has ruled that Chen Shui-bian's classification of incriminating evidence in the State Confidential Expenses scandal as "Top Secret," was legally invalid. Not long ago, the Presidential Office announced that "no Southern Front project file has ever been found." Under the circumstances, President Ma Ying-jeou should make clear that the State Confidential Expenses scandal has nothing to do with state secrets. Prosecutors should investigate and prosecute the case in strict accordance with the law.

As Chen Shui-bian attempts to evade prosecution, he has two magic talismans. One is Wu Shu-chen's health. This allows her to repeatedly file motions for continuances. The other is Chen's classification of incriminating evidence in the State Confidential Expenses scandal as "Top Secret," just prior to leaving office, and demanding that they be returned to him. Wu Shu-chen refused to appear in court, citing health problems. Yet she was healthy enough to go to the polls to vote, not once, but twice. The court has responded by forbidding her to leave the country. The court's actions can be regarded as countermeasures. The High Court rejected Chen Shui-bian's demand for the return of evidence. It also ruled that Chen's classification the evidence against him as "state secrets" was invalid to begin with. This was a slap in Chen Shui-bian's face.

Earlier, the High Court Prosecutor's Office Special Investigative Unit notified the Office of the President, demanding that the transcripts in the State Confidential Expenses scandal be declassified and asked whether there was any such thing as a "Southern Front" project. President Ma Ying-jeou's response was that he would not declassify the files, but would allow the courts to introduce them in evidence. He explained that among the documents turned over to his administration by the outgoing DPP government, he found no "Southern Front" project. If there is no such thing as the "Southern Front" project, then Chen Shui-bian's so-called "Top Secret" files, including receipts and transcripts, are purely evidence in a court case. As the High Court pointed out, the evidence and transcripts were simply evidence in a criminal case. According to the State Secrets Protection Act, they should not have been classified as secret in the first place. President Ma chose not to declassify them, but agreed to allow the courts to use them in evidence. Superficially, this satisfies the needs of the judiciary. In reality, it evades the responsibility to right a wrong, and the President's constitutional duty to safeguard the nation's laws. That is why Ma has been the subject of public criticism.

Furthermore, if Chen Shui-bian's illegal classification of incriminating evidence is not nullified, technically speaking the evidence is still a "state secret." The Judiciary may have qualms about prosecuting. For example, the trial could not be public, not one word could be leaked, and the verdict would be subject to all sorts of restrictions. The public would be kept in the dark about the details of the State Confidential Expenses trial. They would be unable to judge for themselves whether Chen Shui-bian's sentence is too lenient or too severe. This alone shows that President Ma's handling of the matter runs counter to voter aspirations in the wake of ruling party change.

The High Court ruled that Chen Shui-bian's classification of incriminating evidence is "null and void." It said the articles and transcripts were material evidence in a criminal case. President Chen Shui-bian had no right to resort to such legerdemain to cover up crimes. The Judiciary hs determined that Chen Shui-bian's actions were illegal. So why is President Ma still so worried about declassifying the evidence? President Ma should promptly declare that since there is no "Southern Front" project, the evidence Chen Shui-bian classified in the State Confidential Expenses scandals are not state secrets. As soon as they are officially declassified, there will no longer be any excuse to delay prosecuting this case. An investigation and trial could begin right away, without interference. Otherwise, if President Ma refuses to take action, Chen Shui-bian will resist the High Court's ruling to the bitter end, regardless of whether he has the right to appeal or whether an appeal would be reasonable. He will continue to drag out the investigation and the trial, and in the process, subverting the cause of justice.

The High Court's decision reflects the demands of the Supreme Court. It has passed judgment on Chen Shui-bian's demand for the return of documents he classified as "Top Secret" The High Court pointed out that Chen Shui-bian's actions were invalid, and rejected his demand for their return. It also rendered an interpretation on the presidential privilege of secrecy. It did not say that the president may demand the "return of so-called secret evidence that has already been submitted to the court." This shows that court transcripts are not classified documents. After all, if they were classified documents, wouldn't their use in criminal proceedings constitute a mishandling of the affairs of state? Chen Shui-bian has always been adept at finding legal loopholes. One might say that this time the Courts are turning Chen's tricks against him.

The investigation and trial of criminal scandals is serious business -- the upholding of justice. Every citizen has an obligation to pursue the truth, let alone the President, who must shoulder the heavy responsibility of defending the constitution and the rule of law. If he is timid and lacks the courage to what's right, then he is a man without principles.

Under the circumstances, President Ma must take clear and decisive action. Otherwise he must assume responsibility for delaying justice, for covering up the truth, and for obstructing justice.

馬總統應明快解除國務費案機密核定
【聯合報╱社論】
2008.07.18 02:35 am

高等法院裁定：陳水扁將國務機要費弊案證據、筆錄核定為「絕對機密」，是無效的行政處分。不久前，總統府亦曾宣布「查無南線專案檔案」。情勢演變至此，馬英九總統應該明確宣示，國務機要費弊案卷證並無任何國家機密存在，司法機關應依法進行審理。

陳水扁抵抗法院的兩大法寶，一是吳淑珍以健康理由不斷「請假」；一是離職前將國務機要費弊案證據、筆錄核定為「絕對機密」，並要求返還。吳淑珍拒不出庭，卻兩度公開投票，法院因而予以限制出境處分，可以算是法院對其行為的「反制」。而高院這次裁定駁回陳水扁的請求，且認為當初其核定無效，更是重重打了陳水扁一記耳光。

此前，高檢署特偵組具函總統府，要求就國務機要費弊案證據、筆錄「解密」，並詢問有無南線專案。馬英九總統的反應是：不解密，但同意司法機關使用卷證；另外則公開說明，民進黨政府交接，查無所謂「南線專案」的檔案。倘若南線專案並不存在，那陳水扁核定的所謂「絕對機密」，應是指法院審理卷證內的證據（發票）、筆錄等資料。如今，高等法院指出，這些證據、筆錄，只是單純的刑事案件卷證資料；則依國家機密保護法，本來就不可以核定為機密。因而，馬總統不解密但同意使用的處理方式，表面看來是滿足了司法機關的需要，但卻迴避了糾正不法措施、維護國家法紀的憲政責任，因此受到了社會的批評。

另一方面，陳水扁的違法核定若不予解除，則「形式」上「國家機密」還是存在，司法機關偵審仍有顧忌；例如，不能公開審理、資料不可外洩片言隻字，未來判決書記載有種種限制。從而，對於國務機要費弊案的審理，國人即無從知悉進展及內容，也無法據以評判陳水扁貪腐行為的是非輕重。就此而言，馬總統的處置也違背了選民投票推動政黨輪替的政治付託。

如今，高院既然裁定陳水扁的核定是「無效的行政處分」，並稱扣案的證據和筆錄是刑案事證，陳水扁總統不能用以掩飾犯罪；是則司法機關都對陳水扁的核定認定為違法了，對馬總統而言，解除其形式上的機密核定，尚有何顧慮可言？因而，馬總統應該迅速宣布，既然查無南線專案，國務機要費弊案的扣案證據筆錄亦經法院認為陳水扁的核定無效，則當立即在形式上解除其機密核定，使本案不存在任何延宕的藉口，審理偵查可以迅速展開，不受干擾。否則，馬總統若仍不採任何行動，陳水扁對高院的裁定又再頑抗到底，不論其是否有權再抗告、再抗告是否合法、有無理由，都將繼續拖延本案審判和偵查，國家司法正義勢將備受踐踏摧殘。

高等法院作出的裁定，是應最高法院的要求，就陳水扁要求返還核定之絕對機密，為實體上的裁判。高院除了指出陳水扁的核定無效，駁回返還的要求外；還強調大法官關於總統機密特權的解釋，並沒有說「已提交到法院的所謂機密證據筆錄可以要求返還」；又針對陳水扁自己主張「幕僚未及時呈報核定機密至核定有所遲延」，指明這顯示案內證據筆錄不是機密，否則豈不誤了國家大事？這對一向擅長運用巧門的陳水扁來說，可謂「以子之矛，攻子之盾」的回應。

對於刑事弊案的偵查審判，是伸張國家法紀的嚴肅工作，任何國人都有協助追究真相的義務，何況是肩負憲政法治重任的總統？倘若畏首畏尾，不敢公正以對，即是鄉愿！

值此情勢，馬總統應有明確迅速的行動，否則就要擔負延誤審判、掩蓋真相、阻撓正義的責任。