Thursday, October 30, 2008

The Special Investigative Unit's Impact on Taiwan's Political Situation

The Special Investigative Unit's Impact on Taiwan's Political Situation
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
October 30, 2008

Chen Shui-bian's crimes are too numerous to count. Can justice be restored in his wake? One. He must be punished to the fullest extent of the law. Two. He must be subjected to the judgment of society, thereby establishing standards for right and wrong.

Given Chen Shui-bian's mortal sins, the judgment of society should be harsher than the judgment of the courts. The judgment of the courts will be borne only by the Chen Shui-bian family. The judgment of society will become an indelible part of the nation's political heritage.

Political monsters such as Adolf Hitler and Mao Zedong did not live long enough to be subjected to legal judgments or legal punishments. They have however been subjected to the judgments of society and the judgment of historians. Such judgments help heal society's wounds, and are essential to rehabilitate society. Nazism is subject to both legal and social sanctions in today's Germany. Mao Zedong was never legally prosecuted. But he has been subjected to severe moral condemnation, both inside and outside China. Only an unflinching assessment of political monsters such as these can reestablish society's moral standards and leave a correct historical verdict. Only then can Germany be reborn. Only then can mainland China go forward. Only then can civilization progress.

How should Taiwan deal with political monster Chen Shui-bian? One. The legal aspect. The State Affairs Expenses scandal erupted three years ago. Chen Shui-bian lost his immunity from criminal prosecution on May 20, over five months ago. But he has yet be charged. Two. The social aspect. Chen Shui-bian has been running about seeking political support. On October 25 he was greeted by demonstrators at Jingfu Men, shouting "Ah-Bian, Way to Go!" What sort of moral judgment is this? What sort of contempt for right and wrong is this?

If Chen Shui-bian's combination of phony Taiwan independence and genuine corruption results in this political confidence man marching into prison with his head held high, as the "Standard Bearer of Taiwan Independence," then what has become of justice?

When the overseas money-laundering case first erupted, we made several recommendations. One. Take Chen Shui-bian into custody. Two. Examine Public Prosecutor Eric Chen's case files on the State Expenses scandal. Proceed with the trial, but continue investigating. Based on the nature of the case, on legal procedures, and on legal practices, the Special Investigative Unit had sufficient grounds to arrest and detain Chen. Alas, the Special Investigative Unit settled on doing nothing. The case snowballed until it became more and more difficult to resolve. As long as their investigative and prosecutorial strategy conforms to the law, prosecutors should choose the path that minimizes the cost to society. The strategy the Special Investigative Unit chose has led investigators up a blind alley, It has made it more difficut to indemnify society. It has been a complete bust.

Over the past few months Chen Shui-bian has spent over 100 million NT rallying political support. On October 25, Chen Shui-bian appeared in public without a bullet-proof vest, even though hundreds of police officers were forced to wear them. Whither proportionality? Whither justice?

The Special Investigative Unit says it does not consider politics, that it only cares only about the law. Really? Then why did it allow the August 30 protest march to delay its interrogation of Chen Shui-bian? Why didn't it hold the interrogation as originally scheduled? Why did it allow Chen Yunlin's visit to delay its interrogation of Chen family members? The Special Investigative Unit said "the former president must be treated with respect." What is this, but considering politics? Otherwise, why have Yu Cheng-hsien and Chen Ming-wen been arrested, while Chen Shui-bian remains free as a bird? What's worse, Chen Shui-bian has taken advantage of the latitude given him to accuse the Special Investigative Unit of conducting a political vendetta, . and to recast himself as the "Standard Bearer of Taiwan Independence." Shouldn't the Special Investigative Unit be concerned about how it determines its legal strategy? After all, the Special Investigative Unit should be more than a bunch of legal hacks. If the Special Investigative Unit must consider extraneous issues whiled investigating Chen Shui-bian, it will provide Chen Shui-bian with maneuveuring room. It will undermine right and wrong. Is this really what the Special Investigative Unit has in mind?

The Special Investigative Unit must handle all cases in accordance with the law. No exceptions. But they have many options at their disposal. The Special Investigative Unit should ensure justice even while minimizing the cost to society. The political climate on Taiwan today has allowed Chen Shui-bian to come back to life, even as it has sentenced the DPP to death. Society is again threatened by divisions. People feel is slipping out of their grasp. The "Great Silent Majority" feels its confidence shaken. All because of the Special Investigative Unit's legal strategy.

The public is concerned about the progress of Chen's investigation, prosecution, and trial. They are even more concerned about right and wrong. As long as the investigation, prosecution, and trial are conducted in a lawful and reasonable manner, the Special Investigative Unit ought to respond to public demands for justice. When the investigative process betrays the public trust and and undermines public confidence, what is this but a "miscarriage of justice?"

Investigators have been able to surround the center only by attacking the perimeter. The Special Investigative Unit must be discreet in its prosecutions. If they are determined to make a clean sweep, they may wind up prosecuting some cases too hastily, thereby allowing Chen Shui-bian to walk. The public looks forward to Chen Shui-bian's prompt prosecution. . It also expects to see more detailed investigations of separate cases.

2008.10.30 03:03 am



政 治惡魔如毛澤東及希特勒,其實在世皆未接受司法審判及法律制裁;但他們身後所受社會評價與歷史批判,卻是療癒正義創傷,及重建政治文明所不可或缺。納粹如 今在德國的法律上及社會道德上皆受制裁,毛澤東則在法律上未受到制裁,但在道德層次對他的批判,無論在中國或在世界,皆已相當深刻;唯有對這類政治惡魔建 立正確的社會評價及歷史批判,德國才能重生,中國才走得下去,人類的政治文明才能向上提升!

台灣應如何面對政治惡魔陳水扁?一、以司法偵 審言,自國務費案爆發以來已逾三年,若自五二○陳水扁消失刑事豁免權以來亦已超過五個月,但陳水扁迄今尚未被起訴;二、就社會評價言,陳水扁四處取暖,甚 至於一○二五景福門前接受遊行群眾高呼「阿扁加油」,這算是什麼道德評價?這又算是什麼大是大非?


海 外洗錢案爆發之時,我們就曾主張:一、考慮收押陳水扁。二、應當先就檢察官陳瑞仁所辦國務費案補足起訴的程序;一面審判,一面偵查。就扁案的性質言,及就 法律實務的程序及實體言,特偵組當時皆有足夠的理由及條件如此作為;但是,特偵組卻選擇了現在這一個放任陳水扁趴趴走的策略,案情則陷入如雪球愈滾愈大愈 難收尾的困境之中。偵審策略只要合法,司法當局自然應選擇最能實現公義及最能減少社會成本的路徑;但特偵組如今選擇的策略,非但使偵查工作泥足深陷,亦不 啻使社會正義受到難以彌償的傷害,已經完全失去比例平衡。


特 偵組說,眼中無政治,只問司法。但是,何以八三○遊行日原要約談陳水扁而不約?又何以因陳雲林來訪而明顯推遲了約談扁家被告?特偵組辦案,在心理上存有 「尊重前總統」的心情,這其實就是一種政治考慮;否則,何以余政憲、陳明文皆押,陳水扁卻能囂張至今?何況,陳水扁運用這樣的空間,四處指控特偵組「政治 追殺」,並大力修補重建其「台獨旗手」的政治形象,難道特偵組在比較及選擇各種合法策略時不應有此種顧慮?特偵組畢竟不應是「法匠」,若在偵辦陳水扁時顧 慮多端,以致提供陳水扁進行政治操作的空間,毀了社會正義的大是大非,難道這是特偵組的思維?

特偵組必須「依法辦案」,這一點絕不可有任 何折扣。但在法律手段的選項中,特偵組必須作最能實現公義及最能降低社會成本的選擇。台灣政局形成今日局面,陳水扁大復活,民進黨鑽入死胡同,社會再出現 撕裂危機,及多數人民覺得正義難伸,政治中樞威信動搖,皆與特偵組所選擇的偵查策略有相當關聯。


當 然,偵查工作進行至今,現在也只能順著「邊緣包圍核心」的策略繼續走下去。但我們仍建議特偵組必須作一定程度的分割起訴;倘若心存作出「完全起訴」的經典 演出,恐怕又會將一些罪案支脈草草帶過,形成為陳水扁吃案的局面。國人盼望扁案早日偵結起訴,同時也期望看到更細緻的「分案偵辦」。

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