Monday, November 30, 2009

Can There Be Such a Thing as "Accepting Bribes, but without Betraying One's Official Responsibilities?"

Can There Be Such a Thing as "Accepting Bribes, but without Betraying One's Official Responsibilities?"
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
November 30, 2009

Former Chairman of the Taipei 101 Building Diana Chen has retracted her testimony. She says the 10 million NT she gave then First Lady Ah-Cheng was not a "campaign contribution." Rather it was a bribe given to the chairman of Grand Cathay Securities. Diana Chen's testimony has established that Ah-Bian and Ah-Cheng accepted bribes. Is Diana Chen herself guilty or innocent of bribery? Her testimony has touched off considerable controversy. Many people think that given this precedent, Ah-Bian's "Second Financial Reform" can no longer be successfully prosecuted. Below is our view of the "not in violation of official responsibilities" provision in the Civil Servants Service Act.

On September 24 the Executive Yuan pushed through draft amendments to certain provisions of the Anti-Corruption Law. They added a clause pertaining to "accepting bribes not in violation of one's official responsibilities." The law originally stipulated that civil servants who accepted bribes were guilty regardless of whether they were in violation of their official responsibilities. The law originally stipulated that those who offer bribes are only guilty if they ask the civil servant to violate his official responsibilities. If what they ask the civil servant to do is not a violation of his official responsibilities, then those who offered the bribe are not guilty.

When most people think of the "not in violation of official responsibilities" clause, they think of delays in the issuance of construction permits. They are forced to provide additional documentation, repeatedly. Their applications are rejected, repeatedly. Applicants have the right to have their projects approved. But civil servants deliberately make every effort to deny them the permits they have every right to expect. When the applicant offers money and gifts, he is in fact a victim who has been forced to protect himself. It is understandable that the old anti-corruption law did not punish the victims of such official abuse. In order to clarify official responsiblities and reduce the incentive of officials to demand bribes, the amended provisions will increase punishments. That too is understandable.

But other clauses apart from the aforementioned "rights which should have been protected" are another matter altogether. Being appointed chairman of the Taipei 101 Building was not Diana Chen's right. But some people are actually arguing that Diana Chen's appointment as chairman of the Taipei 101 Building should not be considered a violation of official responsibility. As the Ministry of Justice puts it, a "violation of official responsibility" refers to illegal conduct by civil servants. Conversely, "no violation of official responsibility" refers to lack of illegal conduct by civil servants. But this distinction is far too crude. It strikes one as some sort of ivory tower distinction cobbled up by a legal hack. It is utterly at odds with public expectations regarding fairness and justice.

Members of the public are usually forced to bribe an official because the official wields discretionary authority. Examples include the selection of sites for the construction of public buildings, land use classification in urban planning, whether to tax a particular activity, whether to assign a certain case to a certain individual. These decisions are often made by civil servants. They are often in a position to pick winners and losers from a large number of competitors. For them to pick any particular Tom, Dick, or Harry is in itself legal or illegal. But if one reduces "violation of official responsibility" to what is illegal, if one equates "legal" with "not a violation of official responsibility," then one is being deliberately obtuse.

Take re-zoning or closed bids for example. It is a civil servant's responsibility to act conscientiously, in the best interests of the nation and society. According to Civil Servants Services Act, civil servants may not use their authority "to benefit special interests." Therefore when they are involved in public policy decisions that grant them a high degree of discretion, the Administrative Procedure Act mandates a public hearing and public review. A fair assessment must be made before a decision is made. Special interests may not benefit unfairly. Only then can one say that "no violation of official responsibility" has occurred.

Now let us return to the Diana Chen bribery case. Obviously officials in charge of government-owned shares have considerable discretion regarding personnel appointments for various holding companies and securities firms. That is the only reason candidates feel compelled to offer bribes. Often officials abuse their power to extort bribes, or blindly follow orders handed down from above. They do so to benefit special interests at the expense of the nation. They bypass formal assessment processes. They neglect the welfare of the nation. This is of course a clear violation of the Civil Servants Services Act. In short, official misconduct must not be defined narrowly, on the basis of whether civil servants' conduct is or is not "legal." It must be defined broadly, on the basis of whether civil servants' conduct accords with their larger duty to the nation and society. The justice system must recognize this fact. Only then can those who lobby on behalf of re-zoning be made accountable. Only this accords with public expectations regarding social justice.

The Diana Chen case is actually quite simple. She became chairman of the Taipei 101 Building through bribery. But over the past several years, during the so-called "Second Financial Reform Program," many parasites extracted hundreds of billions of dollars in wealth from the nation's coffers. They did so with the help of civil servants who abused their authority and "violated their official responsibility." These parasites are still sitting pretty and living high off the hog. If the legal system does nothing to bring them to justice, if it allows them to continue enjoying the vast fortunes they extracted from the nations coffers by means of huge bribes, public anger will erupt during future elections. Our Ministry of Justice must re-think its definition of "not in violation of official responsibilities." It must bring it in line with the understanding of the man in the street. It must stop thinking like a legal hack.

2009.11.30 02:43 am









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