Yeh Sheng-mao: A Warning to All Members of the Judiciary
United Daily News editorial (Taipei, Taiwan, ROC)
December 5, 2008
The Taipei District Court has sentenced Former Bureau of Investigation Chief Yeh Sheng-mao to 10 years in prison for leaking money-laundering case information to the Chen family, It has also asked prosecutors to investigate seven members of the Chen family for money-laundering and leaking secrets, including Chen Shui-bian, Wu Shu-chen, Chen Chih-chung, and Huang Jui-ching.
The Ministry of Justice Bureau of Investigation Chief is the head of the judicial police, the most important agency in the fight against corruption and economic crimes. He leaked information about a criminal case to the president, who was the key suspect. He has now been received a harsh sentence. His behavior was a disgrace to the nation and its judicial system.
People may have different views about what constitutes a crime and what constitutes due process. They may have different views about the Special Investigation Unit's role in the investigation of Chen family crimes, and how deep prosecutors ought to dig. But the court's decision regarding Yeh Sheng-mao and Chen family crimes, particularly the ugly scenario of the Burea of Investigation Chief abusing his power, is clear and indisputable. Yeh's behavior was a disgrace to the judiciary. It ought to awaken all judicial investigators, and constitute a starting point for judicial reform and renewal.
The court's decision noted that as early as December 2006, Yeh Sheng-mao had obtained information regarding the Chen family's overseas money-laundering and leaked this information to Chen Shui-bian. In November of the same year, Wu Shu-chen had already been indicted for the State Affairs Fund scandal. Chen Shui-bian was "a potential defendant." Under such circumstances, how could Yeh Sheng-mao, as Bureau of Investigation Chief, not know the seriousness of his actions? Yeh Sheng-mao argued that he was merely providing intelligence reports to the "head of state." In other words, his conduct was an expression of "loyalty" toward the nation. The court had only one response to Yeh's argument: "Clearly irrevelant." It went no further. But this is precisely the problem with Yeh Sheng-mao and many civil servants' concept of loyalty, and something that must be clarified.
The object of Yeh Sheng-mao and all civil servants' allegiance should be the nation's constitution and laws. They have a responsibility to enforce the law. When the head of state carries out his or her duties in accordance with the law, civil servants must of course obey their superiors' orders. But whenever someone is suspected of illegal conduct, even the president, he or she is subject to the law. This must not be confused with loyalty. That is why the criminal code stipulates that civil servants who knowingly violate the law on orders from their superiors are nevertheless subject to punishment. Therefore, when Yeh Sheng-mao received information that the Chen family was engaged in money-laundering, he should have investigated Chen Shui-bian in accordance with the law. On other matters, providing Chen Shui-bian was still carrying out his duties as president, Yeh should have continued taking orders from Chen. Yeh Sheng-mao's mistake was to equate "leaking case information about Chen family money-laundering to Chen Shui-bian, the key suspect," with "providing intelligence reports to the head of state."
The court's decision also made note of the Bureau of Investigation's investigation of the Hualien San Chan River case. Yeh Sheng-mao also leaked information to Democratic Progressive Party legislative caucus convener Ko Chien-min. How does this constitute "loyalty?" Yeh Sheng-mao's conduct was obviously based on obedience to political power. He betrayed his duty. He sold his honor. He treated confidential case files as political offerings, to ingratiate himself with those in power. Strictly speaking, Yeh Sheng-mao betrayed the nation. How can he possibly cite "loyalty to the nation" as a defense?
The court's decision pointed out that as soon as Chen Shui-bian learned from Yeh Sheng-mao's privately delivered "intelligence reports" that 190 million USD in overseas funds had been frozen, he immediately remitted funds to Wu Li-pei. The court held that the money was not a "Taiwan independence Fund." The court held that Wu and the Chen family were accomplices, and asked the Special Investigation Unit to investigate. The Special Investigation Unit has already investigated this part of the case. Whether the Special Investigation Unit will view the court's decision in the same light remains to be seen. But the decision clearly shows that the Chen family's crimes have reached the point where "paper can no longer contain the fire." Chen tranferred funds into a Taiwan independence elder's account in a panic, then called it a "Taiwan Independence Fund." The credibility of his ploy can be imagined. Whether Yeh Sheng-mao's actions constitute "patronage" are legally arguable. But the fact remains he did the Chen family an huge favor. That is indisputable.
Yeh Sheng-mao received a heavy sentence. He will definitely appeal. A higher court may have different views on some aspects of the court's rulings. But Yeh Sheng-mao, as Bureau of Investigation Chief, turned case files about suspected First Family criminal conduct over to the President. That is a fact, and that is a disgrace to the judiciary. Yeh Sheng-mao's leaking of secrets allowed Chen Shui-bian to hijack the presidential election. The nation is still recovering from that disaster. Yeh Sheng-mao is a criminal who betrayed the nation's system of constitutional rule.
2008.12.05 03:07 am
此 案在構成何種犯罪、處理程序，乃至與特偵組偵辦中的扁家犯罪的關聯性、以及審判應觸及的深度等各方面，或有仁智之見；但判決中呈現出來的葉盛茂和扁家的犯 罪行為，特別是調查局長在政治權力體系中種種醜態，卻是彰明昭著，無可爭議。此案誠是司法界的奇恥大辱，應可喚起全體司法檢調人員自我警惕，而成為司法風 氣與體制革新的起點。
判決中指出，早在九十五年十二月間，葉盛茂就已經將調查局獲得的扁家海外洗錢的資訊通知陳水扁；而當年十一月間，吳 淑珍已經因為國務機要費弊案被起訴，陳水扁也成了「潛在被告」。在此情況下，葉盛茂身為調查局長，豈能推稱不知道洩漏資訊的嚴重性？葉盛茂辯稱，他是向 「國家元首」報告情資云云；言下之意，這是一種「效忠」國家的行為。法院對此僅以一句「顯不可採」加以駁斥，未予深論。然而，這正是葉盛茂和許多公務員觀 念偏差的關鍵所在，必須辨明。
葉盛茂和全體公務員一樣，其效忠對象應是國家的憲法和法律，負有執行法律的不可推卸的責任。政府首長在依法 執行職務時，固然須奉行上級之命令；但當任何人有違法之嫌時，那怕是總統，都是執法的對象，不能與效忠混為一談。刑法規定公務員明知上級違法的命令仍加以 執行，不能免於受罰，正是這個意思。因此，葉盛茂獲得扁家洗錢資訊後，本應就陳水扁可能涉及犯罪的部分，依法展開調查；而另就陳水扁依然擔任總統執行職務 的其他部分，仍然聽命於他。葉盛茂混亂了這個分際，遂有「向嫌犯陳水扁報告扁家洗錢資訊」是「向國家元首報告情資」的錯誤認知。
再說，判 決也認定調查局查緝中的花蓮三棧溪案，葉盛茂同樣洩漏給民進黨立法院黨團總召集人柯建銘，這又如何以「效忠」自解？葉盛茂的行為，明顯地是以政治權力體系 裡的僕從自居，背叛職責，出賣節操，以偵查機密當作政治進獻，來換取當權者的照應。嚴格地說，葉盛茂已經背叛了國家，豈仍有臉以「效忠國家」自辯？
抑 有進者，判決指出，扁家接獲葉盛茂的報告和私自交付的公文後，陳水扁查知還有一筆美金一百九十餘萬元的海外款項未被凍結，隨即展開行動，匯款給吳澧培。法 院認為，這筆錢根本不是什麼台獨建國基金，並認為吳某及扁家成員亦是共犯，一併告發移請檢方偵辦。這部分，特偵組已經偵辦在案，將來特偵組的看法是否與本 判決相同尚未可知；但由判決所顯現，扁家是在發覺犯行已經到了紙包不住火的地步，方始緊急匯款，並謊稱是台獨建國基金。這種辯解的可信度如何，可想而知。 而葉盛茂的行為所造成的後果，縱然算不算圖利扁家或有法律上的爭議，但事實上他幫了扁家大忙，恐怕是無可爭議的。
葉盛茂被判重刑，他一定 會上訴。判決之某些部分，或許上級法院另有看法；但是，葉盛茂以調查局長的身分，將第一家庭可能涉及犯罪的資訊和公文交給總統，則屬確定的事實，誠是司法 之恥；而又因葉盛茂之洩密，後來導致陳水扁挾持總統大選，災難迄仍方興未艾，則葉盛茂更是國家憲政的罪人了！