Can Corruption Be Tolerated? Chen and His Wife Will Be Imprisoned

Can Corruption Be Tolerated? Chen and His Wife Will Be Imprisoned
China Times editorial (Taipei, Taiwan, ROC)
A Translation
November 12, 2010

On the eve of the five cities elections, a string of court rulings have been handed down in the Chen family corruption cases. The "not guilty" ruling in the Second Financial Reform scandal has provoked a public outcry. But yesterday the Supreme Court handed down its third instance ruling in the Longtan Land Acquisition scandal and Diana Chen presidential appointment scandal. Former President Chen Shui-bian and former First Lady Wu Shu-cheng were sentenced to ten years and eight years respectively. Chen Shui-bian and his wife will be required to serve out their sentences. The Chen family corruption scandals have been the source of controversy on Taiwan for the past two years. Finally, the first wave of sentences have been rendered. For the first time in the history of the Republic of China, a former president will do prison time.

The reason the Supreme Court found Chen Shui-bian and Wu Shu-chen guilty in its third instance ruling is simple. Under the Punishment of Corruption Act, abusing one's official position to extort bribes is a crime. Anyone who accepts money or property as a result of one's official position, is guilty. This includes accepting contributions disguised as gifts. Whether a relationship exists between the considerations depends upon one's official position and the relationship between the recipient and the donor. The form of bribery, the amount, the time the gifts were made, are all evaluated objectively. The law stipulates that "one may not assume that property exchanged in the name of commissions or gifts bear no relation to official position, or that no quid pro quo was involved."

The Supreme Court further pointed out that "the performance of one's official duties" refers to what civil servants ought to do or must do, within the scope of their duties. As long as their behavior is related to their duties, "that constitutes a substantive relationship the influence wielded due to one's official position."

Chou Chan-chun presided over the Second Financial Reform scandal first instance trial. Can he not feel shame as he reads the Supreme Court's ruling? Chou Chan-chun ignored the law. He selectively cited constitutionally stipulated presidential authority in order to rationalize away Chen Shui-bian and Wu Shu-chen's bribe taking. He attempted to justify Ah-Bian's criminal conduct. He argued that Ah-Bian overstepped his presidential authority when he implemented his Second Financial Reform "program." He argued that since his intervention was not a constitutionally mandated authority of the president, therefore he did not abuse his official position. He argued that therefore no criminal conduct was involved. Since there was no crime, he argued that Chen cannot be convicted of money laundering.

If the Supreme Court shared Chou Chan-chun's distorted view of the law, could Ah-Bian and Ah-Chen have be found guilty in the Longtan Land Acquisition scandal? The Longtan Land Acquisition and Diana Chen presidential appointment scandals bore even less relationship with the president's official authority. Had the Supreme Court invoked the same twisted reasoning as Chou, the First Couple would also have been found "not guilty" of money laundering. Fortunately, most judges on Taiwan are nothing like Chou Chan-chun. They have a genuine understanding of the law. They bear no resemblance to Chou Chan-chun, who ignores right and wrong, who renders judgments based on his own selfish political preferences. The Diana Chen presidential appointment scandal involved domestic money laundering. The Supreme Court judge also found Wu Shu-chen guilty, and sentenced her to one year and two months, commuted to seven months.

Judges are also voters. They will inevitably have their own likes and dislikes regarding politicians and political parties. But they are the final arbiters of justice in society. Their independence and professionalism while adjudicating cases is far more important. Even DPP leaders find it impossible to endorse Chou Chan-chun's ruling. Former legislator Lin Cho-shui openly declared that Chou's ruling was wrong. Lin Cho-shui also cited the constitution and pointed out the absuridity of Chou Chan-chun's constitutional interpretation. After the constitution was amended, the president's power to nominate the premier had already become the president's power to appoint the premier. He even had the power to fire the premier. The president can hardly be considered a "virtual president." Especially since the president also convenes the National Security Council. He determines the nation's overall security policy. Economic and fiscal policies are all part of this overall policy. How can such a president be characterized as a president "lacking in authority?"

The Supreme Court rendered its judgment in the Longtan Land Acquisition case and the Diana Chen presidential appointment case. By doing so, they have provided the strongest legal justification for a second instance conviction in the Second Financial Reform corruption case. The case pertains not only to Chen Shui-bian and Wu Shu-chen. Most importantly, no legal precedent for the conviction of a president on corruption charges exists in Republic of China history. Therefore we must establish strict standards. No matter how much power a president may wield, he may not engage in corruption. This simple truth is not something any judge can change via distorted legal opinions.

The Chen corruption case is unquestionably the most earth-shaking scandal Taiwan has experienced in recent years. Most honest people find the First Couple's first instance acquittal difficult to believe, let alone to accept. How could someone occupying such a high office, pocket billions via so many different channels? The justice system on Taiwan has prosecuted many corrupt officials and elected representatives. Only presidents have never been prosecuted. Add to this fact serious Blue vs. Green political confrontation, and the resolution of the Chen corruption case is indeed a knotty problem. But this is a matter of right vs. wrong. From the investigation to the trial, the sole issue must remain right vs. wrong. Only then can we remain true to our consciences.

The Supreme Court has rendered its third instance ruling in two of the Chen family corruption cases. Ah-Bian and Ah-Chen will be sent to prison to serve out their sentences. Chen Shui-bian says he wants to go to prison. He also says he wants to go to Kaohsiung. Wu Shu-chen's situtation is somewhat special. Under the Code of Criminal Procedure, inmates who might die as a result of physical ailments must be admitted to a hospital or other appropriate facility. There are precedents for seriously ill inmates serving out their sentences at home. Should Wu Shu-chen be classified as "seriously ill?" People may disagree. But the physical condition of the former first lady is definitely a factor that must be taken into consideration.

Chen Shui-bian was elected by citizens of the Republic of China, one vote at a time. He led the nation for eight years. This protracted litigation is not about Blue vs. Green. It is nothing less than a national trauma. But this is merely the first in a long string of corruption case rulings to come. Like it or not, the Chen family corruption cases will continue to impact the political situation on Taiwan for some time to come.

貪汙豈容曲解 扁珍都將入監
2010-11-12
中國時報

五都選舉前夕，扁家弊案接連判決，除二次金改案一審無罪，引爆社會嘩然，昨日最高法院就龍潭購地弊案、陳敏薰人事案三審宣判，前總統陳水扁、吳淑珍夫婦都分別被判刑十一年及八年之刑期，陳水扁夫婦都將發監執行。擾嚷台灣社會二年多的扁家弊案，終於有了第一波的結果，這同時也預告，中華民國將出現第一位坐牢的前民選總統！

最高法院的三審判決，認定陳水扁、吳淑珍夫婦有罪理由簡單明瞭，根據貪汙治罪條例，對於職務上之行為收受賄賂罪，只須收受金錢或財物，與其職務有相當之對價關係，即已成立，且包括假借餽贈等各種名義之變相給付在內。至於是否有對價關係，則要從職務行為的內容、交付者與收受者之關係、賄賂之種類、價額、贈與的時間等客觀情形加以審酌，「不可僅以交付的財物名義為佣金或餽贈，就認為與職務無關，而無對價關係。」

最高法院進一步指出，所以「職務上之行為」，是指公務員在其職務範圍內應為、或得為之行為而言，只要該行為與其職務具有關連性，「實質上為該職務影響力所及者，即屬相當。」

看到最高法院的判決書，二次金改一審法官周占春能不汗顏嗎？周占春跳躍法律，直接從憲法明定的總統職權，罔顧陳水扁夫婦收受賄賂的事實，甚至為扁開脫，指扁介入金改雖是僭越了總統職權，但介入不是憲法所定總統的職權，所以就無所謂違背職務的行為，即然如此，就不是犯罪行為，既非犯罪行為，連洗錢罪都不能成立。

如果最高法院法官也同意周占春扭曲法律的看法，龍潭案哪裡還能定扁珍夫婦的罪呢？因為龍潭購地案和陳敏薰人事案，更不屬總統的職權，從而發生的洗錢也無罪，還好，台灣大多數法官肯定不像周占春，法律條文讀得通透，也不像周占春以一己私心與政治立場之所好，無視是非。陳敏薰人事案衍生的國內洗錢部分，最高院法官同樣判決吳淑珍有罪，刑期一年二個月，減刑為七個月。

法官也是選民，必然會有其對政治人物或政黨的好惡，但是，做為社會正義的最後守門員，法官獨立判案的專業更重要。周占春的判決，讓民進黨人都無法苟同，前立委林濁水毫不避諱，直言周的判決見解有誤，林濁水同樣從憲法指正周占春的謬誤，修憲後，總統對行政院長的「提名權」已變成「任命權」，甚至任命之後還有免職權，當然不是虛位總統。尤其是，總統還可以召開國家安全會議，決定國家全安大政方針，經濟、財政都可能是「大政方針」之一，豈可謂總統「無權」！

最高法院對龍潭案與陳敏薰人事案的判決定讞，已經為二次金改上訴二審提供最佳的法律後盾，這個案子不僅是針對陳水扁夫婦而來，最重要的，台灣史無判例的總統貪汙案，必須確立一個嚴格不容退讓的標準：總統，有再大的權，就是不能貪汙。這麼簡單的道理，不是任何法官扭曲法律見解能改變的。

無可諱言，扁案是近年震動台灣社會的最大弊案，多數淳樸的民眾，很難相信、遑論接受，居最高位者，竟能動輒以億計的價碼，從各種管道收取金錢，台灣司法辦過不少貪官或民代，就是沒碰過總統的弊案，加上台灣政治藍綠對立嚴重，如何處理扁案確實一個棘手的難題，然而，大是大非當前，從偵辦到審判，只有秉持唯是非論是非，才能心無恚礙。

最高法院對扁家弊案中的兩案三審定讞後，扁、珍即將入監服刑，陳水扁曾提出他要入監也要到高雄，吳淑珍的情況比較特殊，根據刑事訴訟法，現罹疾病恐因執行不能保其性命者，得將受刑人送入醫院或其他適當處所。過去也曾有重症者在家服刑的前例，吳淑珍不良於行是否謂之「重症」，容或有不同看法，但不論如何，前第一夫人的身體狀況絕對是執行時，必須考慮的重點。

陳水扁曾是台灣人民一票一票選出來，主政八年的國家領導人，這場漫長的訴訟，非關藍綠，其實舉國皆傷！然而，這也才只是後續一連串弊案終審判決的起步，不論我們喜歡與否，扁案未來還會持續牽動台灣政局與人心好一陣子！