Monday, December 28, 2009

The Ministry of Justice Must Rectify Its Interpretation of "Bribery Not Inconsistent with the Performance of One's Official Duties"

The Ministry of Justice Must Rectify Its Interpretation of "Bribery Not Inconsistent with the Performance of One's Official Duties"
China Times editorial (Taipei, Taiwan, ROC)
A Translation
December 28, 2009

Yesterday the Special Investigation Unit handed down indictments in the Second Financial Reform mergers and acquisitions scandal. But it sharply narrowed the range of those targeted for indictment, provoking a storm of public outrage. The most heavily criticized aspect was the Special Investigation Unit's interpretation of the clause, "bribery not inconsistent with the performance of one's official duties." According to its interpretation of this clause, government officials who accept bribes have have no criminal liability under current law, as long as accepting the bribe did not affect the official's performance of his duties. This newspaper has recently attempted to clarify the issue. Unfortunately we have been unable to persuade the legal hacks involved to change their definition. The Special Investigation Unit has even rationalized Chen Shui-bian's euphemistically-named "Second Financial Reform Program," a transparently obvious sweetheart deal. All we can do is explain the issues, yet again, not only to the Special Investigation Unit, but to every prosecutor within the Ministry of Justice. All we can do is enlighten them about the meaning of "mergers and acquisitions" and "dereliction of duty."
Publicly owned banks are the nation's cash cows. Even though their operational efficiency cannot match that of private banks, they receive a fixed annual income from the national treasury. The central government has only one reason to privatize these banks and sells off shares, and that is to maximize the wealth of the treasury. Other considerations include protecting the rights of employees, but these are invariably of secondary importance. They are the most important reason for selling off shares.

When the Ministry of Finance sells shares of say, Bank A, it must of course sell to the highest bidder, or at least to the most appropriate bidder based on other considerations. Say for example, that Bidder A and Bidder B are both interested in acquiring Bank A. Bidder A bids 100 billion. Bidder B bids a mere 30 billion. Yet the Ministry of Finance sells the bank to Bidder B. The National Treasury loses 70 billion, for no good reason. If this is does not constitute dereliction of one's duties as a civil servant, what does? Is this does not constitute a violation of government procurement laws, what does? All of the government's laws pertaining to the procurement process, including the Administrative Procedure Act, stipulate open bidding and transparent evaluations, in order to protect the national interest. Only under special circumstances, when the national interest is not involved, are officials free to choose between Bidder A and Bidder B. In other words, when the government sells off shares of public banks, there is definitely a "right price." If offiicals ignore the higher bid, and hapharzardly award contracts without proper authorization, they are impoverishing the national treasury, in order to benefit special interests. This is clearly a dereliction of their duty as civil service employees. They may be prosecuted for such conduct. The person offering bribes may also be subject to criminal prosecution for "bribery inconsistent with the performance of one's official duties."

Let's examine bribery from another point of view. Say Bidder A, Bidder B, and Bidder C all want to bid on Bank A. The government must award the bid to the highest bidder. If the highest bidder is awarded the bid, then there is no need to pay bribes. Only when someone who is not the highest bidder wants to be awarded the bid, that is it necessary for him to pay a bribe. Therefore, the act of bribing an official is prima facie evidence of an attempt to induce an official to violate correct procedure. It is prima facie evidence that the bidder wants an official to grant them a franchise inconsistent with the national interest. Those attempting to bribe officials are clearly guilty of attempting to induce them to engage in "bribery inconsistent with the performance of one's official duties."

Conceptually, only one situation can be classified as "bribery not inconsistent with the performance of one's official duties." That is when the person offering the bribe is merely seeking to ensure rights he was already entitled to. For example, if a person has passed a driving test, he is entitled to a driver's license. But officials may make him jump through hoops. In such a case, he may attempt to bribe them, merely to ensure the rights he was already entitled to. To absolve such a person of a crime is publicly acceptable. A holding company's acquisitions, on the other hand, are another matter entirely. The Tsai family, which owns the Cathay Corporation, has no god-given right to acquire the United Bank. The Koo family or Wu family have no god-given right to acquire the Changhua Bank. These are not matters of rights. Therefore if officials illicitly transfer tens of billions from the state treasury into the private accounts of these wealthy families, they are course derelict in their duty. Officials transfer tens of billions in government assets into the pockets of private individuals. And yet prosecutors maintain that these officials were not derelict in their duty, and that these were not sweetheart deals for the sake of special interests. This is not merely an inability to reason. This is willfull, head in the sand blindness.

Former University of Chicago president Robert Hutchins once commented on the shortcomings of today's legal education. He said that if those who enforce the law know only how to apply the law mechanically, but know nothing about the philosophy of law and the concept of justice, then they are a menace to society. Unfortunately the legal hacks in the Special Investigation Unit and the Ministry of Justice Prosecutors Office have an understanding of bribery and official responsibility that deviates from society's. Worse, it is not even consistent with the most basic principles of justice. They must indict those guilty of bribery in the Second Financial Reforms Program scandal. They must insist that the bribery involved dereliction of duty. If they refuse to do so, then they are declaring that those who have stolen hundreds of billions in national assets may get off scot-free. They are demonstrating that those who enforce the law live in a decadent, self-imposed isolation.

We offer the prosecutors of the Special Investigation Unit and the Ministry of Justice a refresher course in jurisprudence. We call upon Minister of Justice Wang Ching-feng to address the serious problem of ignorance among those who interpret the law, and who indiscriminately expand the definition of the clause, "bribery not inconsistent with the performance of one's official duties." To the vast majority of the public on Taiwan, this is unacceptable. It rationalizes official discretion in the accepting of bribes. It is a major scandal that has shaken the foundations of the nation. Addressing the problem does not require amending the law. All that is necessary is for prosecutors to clarify the various legal concepts. The good name of government administrators and private entrepreneurs must not be destroyed by this group of legal hacks with a flawed understanding of the law!

中時電子報 新聞
中國時報  2009.12.28



既然如此,那麼當財政部要把公股銀行A的經營權釋出時,當然就該把銀行賣給出價較高、或其他綜合考量最恰當的投標者。如果甲、乙二人對於 A銀行皆有意併購,甲出價一千億、乙只出價三百億,但財政部卻將銀行低價賣給乙,使國庫平白無故損失了七百億,這不是違背公務員職務,是什麼?所有的政府採購法、行政程序法等規範,就是要以公開的程序、透明的審理,去確保國家權益的極大。只有在無涉國家利益的特殊情形,公務員才有在甲、乙之間的自由採擇空間。簡言之,國家出售公股銀行,絕對是有「對價」的。公務員捨棄出價高者、或是根本不理會對價而擅予亂點鴛鴦譜,就是減損國庫、圖利他人的行為,是百分之百的違背公務員職務。這種行為不但該予追究,而行賄者也當受「違背職務行賄」之刑責。

換個角度來看行賄者。如果甲、乙、丙三人皆想標購 A銀行,而國家也理應以出價最高者標售之,則甲、乙、丙中出價最高者本來就會得標,不必行賄。事實上,也只有原本不該得標的人想要破例得標,才有行賄的必要。因此,商家行賄官員之行為本身,就是表示其意圖使公務員破格給標,也就表示他們想要公務員不合國家利益地給予經營權,其行賄自然應依「違背職務行賄」予以追究。

在概念上,我們認為只有一種情況可以列為不違背職務行賄,即行賄者所企求的標的,本為其所應得的權利(entitled rights)。例如,某人已通過駕照考試,應有取得駕照的權利,卻因行政官員刁難而拿不到手。在這種情況下,行賄只是為求保障應得權利之不得已,免其行賄刑責人民自能接受。就金控併購而言,併入世華銀行當然不是國泰蔡家權利、買下開發金或彰銀也不是辜家或吳家權利。既然不是權利,卻任憑官員上下其手、私相授受,且影響國庫收入動輒數百億,當然是違背職務的行為。如將國家財產數百億給予私人,檢察官竟然還說這不算圖利、沒有違背職務,這不僅是推理短路,簡直是晉惠帝般愚癡。

芝加哥大學前校長哈金斯(Robert Hutchins)曾經對當今法學教育的弊病提出針砭。哈氏指出,司法者若只嫻熟法律規則的形式推理,卻對於法理正義的哲學一無所知,那就是社會的危害。令人遺憾的是,特偵組與法務部法匠檢察官對不違背職務行賄的認知,既悖離社會感情,亦不符合最基本的法理正義。如果對於二次金改的行賄者不起訴,硬說他們是不違職務行賄,那不僅宣示五鬼搬運國家千億財產者可以逍遙法外,也是司法者自我封閉於形式邏輯實證法的墮落。


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