Chou Chan-chun's Political Confession

Chou Chan-chun's Political Confession
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
November 9, 2010

Executive Summary: Chou Chan-chun's Full Court has acquitted the defendants in the Second Financial Reform corruption case. The public is apoplectic. The most mind-boggling aspect of the case is how the text of the full court's ruling openly admits that Blue vs. Green political biases determined its ruling. The text of the ruling was nothing less than the confession of a political hatchetman. Today's framework of constitutional powers and responsibilities is not sufficiently clear. Nevertheless Chou Chan-chun had no right to make such an absurd leap in logic. In order to let Chen off the hook on corruption charges, Chou equated Ma Ying-jeou's intervention in airport trollies with Chen Shui-bian's "exceeding the president's legally mandated authority." Chou's legal sophistry is a blemish on our legal system, and a tragedy for constitutional rule.

Full Text below:

Chou Chan-chun's Full Court has acquitted the defendants in the Second Financial Reform corruption case. The public is apoplectic. The most mind-boggling aspect of the case is how the text of the full court's ruling openly admits that Blue vs. Green political biases determined its ruling. The text of the ruling was nothing less than the confession of a political hatchetman.

For example, the text of the ruling points out that promoting the Second Financial Reform was "not part of the president's constitutionally mandated authority." The text states that although Chen Shui-bian promoted the Second Financial Reform "program." he was "merely perpetuating authoritarian thinking and mistakenly presuming the right to intervene in the affairs of the Ministry of Finance." He merely "exceeded his legally mandated presidential authority." Therefore his actions did not constitute "use of his official position to gain illicit advantage." Everyone, from those who offered bribes to those who accepted bribes, was a victim of a "misunderstanding," therefore all were found "not guilty."

In order to enable Chen Shui-bian to evade punishment, Chou Chan-chun used Ma Ying-jeou as a shield. His ruling stated that Chen Shui-bian receiving vast sums of money as a result of his Second Financial Reform "program," was "no different" that the current president's intervention in the airport trolley replacement issue, military physical fitness standards, and wetland ecology. What Chou Chan-chun meant was that Chen Shui-bian's "exceeding of presidential authority" was identical to Ma Ying-jeou's "exceeding of presidential authority." Both were constitutional anomalies. But judges may not turn two wrongs into a right. They may not cite "use of one's official position" to let Chen Shui-bian off scot free.

Chou Chan-chun presumed to interpret the constitution. But he could not mask his own Blue vs. Green political bias, or his attempt to engage in selective prosecution. When mentioning Ma Ying-jeou, he deliberately chose apparently trivial issues, such as trolleys and wetlands. Why didn't Chou Chan-chun mention Typhoon Morakot and the financial tsunami? These too involved "exceeding the president's constitutionally mandated authority." Ma should neither have intervened, nor should he have been held responsible for either. But Chou Chan-chunn knew that if he cited Typhoon Morakot and the financial tsunami, he would have been at odds with public sentiment, and would not have had a leg to stand on. Chou deliberately chose the issue of trolleys. He deliberately ignored political reality. Lee Teng-hui, Chen Shui-bian, and Ma Ying-jeou were three directly elected presidents. Each of them assumed control over the nation's business. When Chou ignored this political reality, he injected Blue vs. Green politics into his legal judgments. He used handcarts to harass political enemies such as Ma Ying-jeou. He used sophistries about "exceeding the president's legally mandated authority" to help political allies such as Chen Shui-bian evade criminal prosecution. What is this, but the conduct of a political hatchetman?

Let us return to constitutional issues. Seven constitutional "amendments" have seriously eroded the framework of the constitution. Constitutional powers and responsibilities have indeed been blurred. But lest we forget, when Chen Shui-bian was elected president in 2000, he declared that the constitutional framework is moving in the direction of "a presidential system, with a dual leadership system." He refused to allow the legislature to form a majority cabinet. He insisted on a small ruling party, large opposition party-style minority government. All this can be verified. Chen Shui-bian's control over the reigns of government was hardly the "mere perpetuation of a past authoritarian mindset." Chou Chan-chun attempted to drag his political enemies in the KMT into Chen's morass. Chou was motivated by his political bias, not by any honest misunderstanding. Besides, if during his eight years in power, Chen Shui-bian held total dominion over the machinery of state, as Chou acknowledges when Chen "exceeded the president's constitutionally delegated authority," shouldn't Chou be prosecuting Chen for the crime of usurpation?

Those debating the constitution today cannot look only at the provisions, whose content may be unclear. They must look at how the constitution has actually functioned since martial law was lifted 20 years ago. During Chen Shui-bian's eight years in office, the system "moved toward a presidential system with a dual leadership system." In fact it amounted to a fully implemented "super-presidential system." Six premiers in rapid order can testify to that. Chou Chan-chun wants the public to swallow flagrant absurdities. On the one hand, Chou concedes that President Chen did indeed intervene in the Second Financial Reform "program" and that Chen did indeed accept money from the heads of financial conglomerates. On the other hand, Chou insists that as president Chen Shui-bian "lacked the legal authority" to accept this sort of dirty money. Chen Shui-bian is suddenly no longer president, and as such, not guilty. This is akin to saying that if one grabs another person's knife (usurps another person's authority), then kills someone with it (engages in corruption), one is not guilty of homicide, and should not be charged with murder.

Now let us address the legal controversy. First, let us back up. Chou argues that Chen "lacked presidential authority." But even Chou admitted that Chen Shui-bian took money. The Punishment of Corruption Act stipulates that "taking advantage of opportunities offered by one's status as an official to extort wealth" is a felony subject to heavy penalties. The act reads "opportunities" and "status." It does not limit itself to "official authority." Let us back up even further. Chou Chan-chun insists that the money was "campaign contributions." First, several large suitcases filled with cash were delivered to the president's official residence. Then funds were remitted to overseas dummy corporations. This means that Ah-Bian and Ah-Cheng were in open violation of the Political Contribution Law, which stipulates that contributions must be deposited in a specified account and may not be in cash. Not only does the law call for harsh penalties, the recipient can even be fined two to three times the amount of the contribution. In other words, Ah-Bian and Ah-Cheng accepted 610 million NT in contributions. Therefore they could be fined as much as 1.83 billion NT. Not only does Chou Chan-chun's interpretation of the constitution receive a failing grade, so does his interpretation of the law. All of which confirms what the Special Investigation Unit said when it heard Chou's judgment. "If one is determined to find Chen not guilty, why bother with legal pretexts?

Today's framework of constitutional powers and responsibilities is not sufficiently clear. Nevertheless Chou Chan-chun had no right to make such an absurd leap in logic. In order to let Chen off the hook on corruption charges, Chou equated Ma Ying-jeou's intervention in airport trollies with Chen Shui-bian's "exceeding the president's legally mandated authority." Chou's legal sophistry is a blemish on our legal system, and a tragedy for constitutional rule.

檢視周占春的政治自白書
【聯合報╱社論】
2010.11.09

周占春合議庭判決二次金改賄賂案無罪，輿論譁然。其中最不可思議處，是在整本判決書暴露了合議庭毫不掩飾地以藍綠政治觀點作出這項判決。這部判決書，根本是一本政治打手的自白書。

例如：判決書指出，二次金改「非憲法列舉的總統職權」，陳水扁雖介入二次金改，只是「延續威權統治思考方式誤以為有干預財政部之權」，及「逾越了總統法定職權」而已；因此，不構成「對於職務上之行為收受不正利益」，收錢者、送錢者皆是出自「誤會」，統統判決無罪。

為了替陳水扁開脫，周占春拉馬英九作墊背。判決書說，陳水扁介入二次金改並收受巨款的行為，與總統插手機場手推車更換、國軍體能測驗標準，及生態溼地是否保留等事例「無異」。周占春的意思是說：陳水扁「逾越總統職權」，正如馬英九也「逾越總統職權」；這是憲政異象，但法官不能「將錯就錯」，以「利用職務」來定陳水扁的罪刑云云。

周占春以憲法解釋者自居，卻不能掩飾他是以藍綠政治觀點而作出避重就輕的解釋。他說到馬英九，故意挑舉幾個似乎無足輕重之事，如手推車、溼地保留等；然而，周占春為何不說，八八水災及金融海嘯等「事例」，也皆「非憲法列舉的總統職權」，馬不應預聞，亦不當負責。因為，周占春知道，他若舉八八水災與金融海嘯為例，那就與國民感情與社會認知勢成水火，根本無法立足。周占春故意挑撿了手推車等事，又故意罔顧自李登輝、陳水扁及馬英九以來三位直選總統在實際上皆操持國柄的事實；如此，等於公然在判決書上操作藍綠，以手推車消遣其「政敵」馬英九，並替其「政友」陳水扁之「逾越總統法定職權」辯護脫罪，這寧非政治打手的行徑？

回頭來談憲法爭議。經七次修憲而遭嚴重破毀的憲政權責架構，確實有權責界際不清的問題。但陳水扁在二○○○當選總統即宣示，憲政權責架構是「傾向總統制的雙首長制」；並拒絕由國會多數組閣，而堅持「朝小野大」的「少數政府」。這些皆可證實，陳水扁操持國柄，絕非「延續（過去）威權統治思考方式」（周占春又將其「政敵」國民黨拖下水），而是出自他的政治認知與深信（而非誤解）。倘若陳水扁八年宰制一切國政皆屬「逾越了總統職權」，周占春是否應當治陳水扁以竊國罪？

論今日憲法者，不能只看條文（條文容或不清楚），而必須兼看解嚴後二十年來的實際憲政運作。陳水扁八年執政始終操持「傾向總統制的雙首長制」（其實是「超級總統制」），且實行得通透徹底（六易閣揆即是一證）。周占春的荒謬在於：一方面在判決書中承認「陳總統」確實介入了二次金改且收了金控老闆的錢，另一方面卻認為「總統」無「職權」收這種髒錢，所以「陳水扁」（他不再是總統了？）無罪。這好比說：你搶了別人的刀子（搶了別人的職權）去殺死了人（去貪汙），難道就不算殺人？就不應判殺人罪？

於是可談法律爭議。退一萬步說，即使「非關總統職權」，但陳水扁拿了錢卻是連周占春也證實之事；則在貪汙治罪條例中，有關「藉勢藉端強募財務」、「利用職務上之『機會』（不僅指職權）詐取財務」、「利用職務上之『身分』（亦不僅指職權）圖利自己」皆有「罪刑法定」之法源根據，且皆是重罪重刑。再退一萬步說，周占春既認定系案金錢是「政治獻金」（先用幾大皮箱送入官邸，繼以匯往海外人頭公司），則扁珍亦明顯違反《政治獻金法》（例如應設專戶，不可用現金），除了依法可判重刑，甚至可處罰「受贈之款」二至三倍的罰鍰。亦即，扁珍收贓六‧一億，最高可罰十八‧三億。周占春非但憲法不通，連法律也不通。這一切都印證了特偵組在聽到判決後的一句話：欲判無罪，何患無辭！

現今的憲法權責架構確實有不夠清楚的地方。但無論如何，周占春從馬英九無權管手推車，以跳躍式的邏輯逕自作出陳水扁「逾越總統法定職權」而貪汙為無罪的判決，這是司法界的政治醜聞，亦是憲政上的司法悲劇。