Flip-flopping on Kuang Li-Chen's Impeachment

Flip-flopping on Kuang Li-Chen's Impeachment
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
January 15, 2009

The Control Yuan has moved to impeach Taitung County Commissioner Kuang Li-chen twice in less than one month. The first time the motion to impeach failed, by a vote of four to six. The second time it passed, by a vote of six to five.

The changed outcome of the impeachment motion reveals the Control Yuan's lack of consistency regarding real world justice. This resulted in such strange phenomenon as "If at first you don't succeed, try, try again," which violates the principle of "non bis in idem," or "double jeopardy." It also puts the Control Yuan's commitment to due process in question.

All eyes and ears are on the Kuang Li-chen case. The case will affect the image of the Control Yuan. After the impeachment motion passed, most Control Yuan members suggested that neither the results nor the details of the commission's resolution should be announced. This sort of secrecy has cast a dark cloud of suspicion over the case.

On December 19, the Control Yuan reviewed the Kuang Li-chen case for the first time. It passed a resolution calling for the correction of faulty procedures. It rejected a resolution calling for the impeachment of any individual. The majority opinion was that Kuang Li-chen may have applied for more public funds than allowed, but only a mere 20,000 NT more (approximately $600 US). Besides, the offense may have been committed by her subordinates without her knowledge. Therefore the Control Yuan chose not to impeach. But once their decision was reported, accusations of "Selective prosecution of Greens, but not Blues!" emerged. Rumors that someone had lobbied the Control Yuan emerged. This may have contributed to the second impeachment review commission.

The second impeachment review commission essentially overturned the first commission's findings. It clearly violated due process by breaching the principle of "non bis in idem." The Control Yuan now look like the father and son in the old "Father and Son Riding the Donkey" fable, flip-flopping repeatedly to avoid public condemnation. Needless to say, it is also turning into a major constitutional issue.

The first motion to impeach failed. What went wrong? Did Control Yuan members make a serious error in judgment? If they didn't, then why the second motion to impeach? If they did, what was the legal basis for the second motion to impeach? Who should bear responsibility for the failure of the original motion to impeach? Was the failure to pass the first time the result of lobbying, as rumored? If it was, how can the Control Yuan allow commissioners suspected of undue influence to get off scot-free? How can it allow these same commissioners to re-open the case and reverse their finding? If the failure to pass the first time was not the result of lobbying, how can they deny the legitimacy of the first review? The decision not to make public the findings of the impeachment process defies all sense and logic. How can such a decision not make the commissioners laughing stocks?

The Kuang Li-chen case is rife with drama. Government officials' and elected representatives' overseas "fact-finding missions" are usually nothing more than junkets. Kuang Li-chen found herself in the crosshairs because of her "in your face" personality, and because her husband went with her on the trip. The fact that she refused to cancel a trip as a typhoon was approaching Taiwan made her the target of public criticism. Therefore, the Control Yuan faces a dilemma. If Kuang Li-chen can be be impeached on this basis, then a defective system has done her an injustice. Hardly any government officials and elected representatives can pass muster under such standards. But on the other hand, Kuang Li-chen did misappropriate public funds. She did allow her spouse to travel with her at public expense. To claim she did nothing wrong fails the test of public accountability. In other words, the Control Yuan may choose to impeach Kuang Li-chen, or it may not. Either decision can be justified, provided it is arrived at openly and honestly. But now that rumors of lobbying have spread, and the Control Yuan has flip-flopped from no impeachment to impeachment, its reputation and image have surely been damaged.

The United Daily News was the first to severely criticize Kuang Li-chen's actions. Such behavior is subject to public criticism through political commentaries. But impeachment and other legal actions are another matter. Today the same Control Yuan has changed its position from no impeachment to impeachment. Naturally the public is going to have serious questions about the Control Yuan's procedural mechanisms. After all, if the Control Yuan can change from no impeachment to impeachment today, what's to stop it from changing from impeachment to no impeachment tomorrow?

Kuang Li-chen was not impeached in December last year. The Control Yuan may not reconsider impeachment merely because public pressure demands it. If Kuang Li-chen was not impeached last year as a result of lobbying, the Control Yuan cannot compensate by seeking to impeach today. Instead it should suspend the suspected Control Yuan commissioners.

The Control Yuan must have the courage to impeach when impeachment is called for. It should also have the courage not to impeach when it is not. We are not here to discuss whether to impeach Kuang Li-chen. Whether one impeaches her or not, the process must be open and above board, free from political influence, free from the pressure of mob sentiment stirred up by populist demagogues. This is why the flip-flopping over the Kuang Li-chen case is baffling. If members of the impeachment commission had reason not to impeach initially, how can they justify reversing themselves? If their current decision to impeach is correct, then obviously the first time they made a mistake. Were they subjected to lobbying pressures? The Control Yuan must answer to the public. Instead it has chosen to keep its decision to impeach secret from the public. Whom is the Control Yuan kidding? Itself?

Why has the system flip-flopped repeatedly? Why has due process become so chaotic? The Control Yuan must realize the damage the Kuang case has done to its reputation and image. It must swiftly repair the damage.

彈劾鄺麗貞 監院出爾反爾
【聯合報╱社論】
2009.01.15 03:08 am

前後相距不到一個月的時間，監察院兩度彈劾台東縣長鄺麗貞，第一次四比六未通過，第二次六比五通過了彈劾案。

兩次彈劾案的結果不同，可見監察院對「實質正義」的見解搖擺不定；且竟然出現「彈劾不成再彈劾」的怪事，有違「一事不再理」的原則，亦使監察院的「程序正義」受到質疑。

鄺案為視聽所繫，如此出爾反爾自將影響監察院的形象；而彈劾案通過後，多數監委主張不對外公布，亦即不對外說明審查會的決議，尤使這宗彈劾案罩上了一層難以理解的疑雲。

十二月十九日，監察院第一次審查鄺案，通過了對事的糾正，否決了對人的彈劾。當時，多數意見認為，鄺麗貞縱使溢領公費，金額「僅二萬元」，且可能是「下屬 所為，長官並不知情」，因而彈劾案未通過。消息發布後，「辦綠不辦藍」的譏評四起，更傳出有人關說監委；這也許是促成第二次彈劾的原因。

第二次彈劾案，如前所述，非但在實質部分推翻了第一次審查，且顯然違反「一事不再理」的程序正義。倘若監察院辦案也出現「父子騎驢」的搖擺反覆，當然會演成極其重大的憲政爭議。

第一次彈劾案未過，究竟出了什麼問題？是否參與的監委認事用法有嚴重偏誤？若非，為何有第二次彈劾案？若是，則又是循何種法制進行第二次彈劾？而原本未通 過彈劾的審查會又當負何種責任？或者，竟然是因外傳的「關說」而使第一次審查出現偏差？若是，監察院豈能放過涉嫌關說的監委，又豈能以再開審查會來翻案？ 若非，則又何以否定首次審查的正當性？至於居然決定不對外公開通過彈劾的審查決議，則更是違情悖理的行徑，豈能不落人話柄？

鄺案頗具戲劇性。就情節論，政府官員或民意代表出國考察，常是旅遊與公務魚目混珠；鄺麗貞之釀成話題，和她「代夫出征」的背景與人格特質有關，尤其碰上颱 風過境，遂成眾矢之的。因此，監察院在審查鄺案時，確實極易陷於兩難：倘若鄺麗貞的情節可以彈劾，則因制度陷人於不義，禁受不起此類檢驗的官員及民代誠屬 不知凡幾；但是，反過來說，倘以鄺麗貞溢支公帑，又以公費攜眷出國等情節論，若謂無違官箴，恐亦難向社會交代。也就是說，監察院無論彈不彈劾鄺麗貞，或許 均有憑恃，只要光明正大即可；但如今卻在關說的流言中，出現從不彈劾變成彈劾的反覆，對監院的聲譽形象不能謂沒有傷害。

對於鄺麗貞的相關行為，本報曾是最早提出嚴厲批評的媒體之一。不過，其行為在政治上可受公評，但在彈劾或法律層次的處理卻是另一回事；而如今在同一監察院 中，從不彈劾演變成彈劾，當然易使社會公眾對監院的運作機制發生質疑。因為，倘若監院今天能將不彈劾變成彈劾，另日是否也能將彈劾變成不彈劾？

鄺案在去年十二月不彈劾，監院若是有所憑恃，即不能因國人皆曰應彈劾，而又再提彈劾；反之，鄺案去年不彈劾若真是受關說影響，如今亦不能以再彈劾來尋求解套，而是應當命涉嫌的監委離開監察院。

監察院應有敢於彈劾的擔當，亦應有敢於不彈劾的擔當。我們在此並非討論應否彈劾鄺麗貞，但不論彈劾與否，其共同前提是，必須光明正大，不受政治力干擾，亦 不受民粹氣氛影響。正因如此，鄺案的反覆令人不解。倘若當初不彈劾有理由，豈可出爾反爾又彈劾；倘若如今彈劾是對的，則第一次不彈劾為何發生如此差誤，又 究竟是否受關說影響，監院不能不對外有個交代。至於弄到彈劾通過卻欲對外祕而不宣的地步，監察院難道是掩耳盜鈴？

實質正義何以反覆？程序正義何以錯亂？監院應視鄺案的周折為聲譽形象的重傷，速作療傷止痛之圖。