Judge Chou Chan-chun's Wrongheaded Reading of the Constitution

Judge Chou Chan-chun's Wrongheaded Reading of the Constitution
China Times editorial (Taipei, Taiwan, ROC)
A Translation
November 8, 2010

The Full Court, under Taipei District Court Judge Chou Chan-chun, has handed down its ruling in the Second Financial Reform scandal. Among the 21 defendants were former President Chen Shui-bian and his wife. Despite the fact that the former President and First Lady accepted hundreds of millions of NT in cash, both were found not guilty.

When the news came out, the public was outraged. Were it not for the former President and First Lady's official status, could they have coerced business tycoons into handing over hundreds of millions of dollars in cash? The cash allowed the tycoons to receive benefits they could not have otherwise. After all, who would part with such vast sums willingly? The former First Couple exploited the former President's status of head of state. During the former President's brief time in office, the couple accumulated a vast fortune no middle class family could have in an entire lifetime. The Special Investigation Unit indicted the First Couple, but has not been able to obtain a conviction. It angrily denounced the judges for being totally out of touch with public understanding of the crime. Naturally it intends to appeal.

The three judge panel consisted of Chou Chan-chun, Lin Po-hung, and Ho Chiao-mei. The verdict, which brimmed over with justifications, stated that, "Occasionally differences may arise between the decisions of judges and unverified common sense," but "justice cannot become a tool for manipulation by political forces." In other words, the judges claimed they had refused to try the case on the basis of political stance, common sense, or public sentiment. The judges claimed they would not be surprised if their verdict provoked an intense political and social backlash. Prosecutors intend to appeal and hope to have the verdict reversed. But they must argue their case on the basis of law, and not merely appeal to emotions.

The Taipei District Court handed down a "not guilty" verdict. The judges argued that the prosecution's indictment was rooted in the Punishment of Corruption Act, which prohibits civil servants from "using their official position" to obtain bribes or illicit advantages. The judges argued that the prosecution failed to indicate how the former President "used his official position" to intervene in the merger of financial holding companies, or prove that he accepted bribes. The verdict included a litany of constitutional interpretations. It listed the powers of the president as detailed in the Constitution. It noted that he may not directly issue orders to Executive Yuan personnel, meet with or telephone government heads, or order the Presidential Office Deputy Secretary-General to demand that ministry heads perform specific tasks. These actions all exceed the president's authority, the judges argued, but they do not amount to "use of one's official position." Therefore the judges concluded that the former President and First Lady were not guilty.

Such legal sophistry Ignores a fundamental legal concept. The purpose of constitutional provisions is to prevent abuses by a head of state. They are not intended to help heads of state abuse their authority or escape criminal prosecution. In order to protect the dignity of a head of state, the constitution grants the president immunity from criminal prosecution during his or her term of office. As the Grand Justices' constitutional interpretation of the district court's decision has made clear, former President Chen's immunity from criminal prosecution is not absolute. It is not something he enjoys for life. He remains subject to prosecution of criminal behavior committed during his term in office, once his term expires. The main purpose of the constitution is to limit the abuse of political power, not to provide a basis to acquit politicians for abuses of authority. The President or any other civil servant who commits a crime never "uses his or her official position" to commit a crime. He "abuses his or her official position" to commit a crime. The Punishment of Corruption Act punishes "using the opportunities provided by one's official position to extort property." It also punishes "accepting illicit benefits in an official capacity." This is why. It is irrelevant whether the payments received by the former President and First Lady constituted bribery. As long as they involve illicit advantages, it already constitutes corruption. Using the Presidential Office to dispatch Presidential Office personnel to intervene in financial reform, abuses the aura and status of "head of state" to accumulate vast wealth, in violation of the constitution. It is hardly a constitutional right such as the basic human right to politial asylum. A constitution is basically an inanimate object. Whether it can prevent the abuse of political power, depends upon whether the courts can interpret it properly. The key is correctly interpreting the intent of the constitution.

Why did these judges render a "not guilty" verdict in this case? Because they lacked an understanding of the constitution, and because a better understanding of the constitution is required. Also, the judges looked only at whether the former President's "used his official position." They ignored the fact that he "abused the opportunities provided by his official position" to engage in corruption. Was this the result of prosecutorial error during the indictment? Was this the result of the judges not seeing the forest for the trees? This must be cleared up during the second instance appeal.

The court's verdict naturally cannot be based on common sense or public sentiment. But the court must also answer the following question. The former President and First Lady promoted government financial reform. As a result they raked in vast sums of money. If that does not constitute corruption under the law, is that due to a deficiency in the law? Is that due to a blunder by prosecutors? Or is that due to political interference? The verdict was tens of thousands of words long. Yet it failed to explain the verdict, If the verdict has provoked a public backlash, the judges can hardly plead innocence.

The Taipei District Court's decision at least clarifies one long-standing misconception. Now at least we can say that the courts truly are not operated by the KMT.

周占春法官錯解了憲法意旨
2010-11-08 中國時報

二次金改弊案，台北地方法院周占春合議庭宣判，包括前總統陳水扁夫婦在內的廿一名被告，雖涉及總統夫婦收受數億新台幣款項的案件情節，皆判決無罪。

消息傳出，社會側目，總統夫婦若不是因為身居國家元首第一家庭的公職身分地位，焉能使得工商鉅子獻出數以億計的金錢，如果不足以讓獻金者獲得非為此獻金不能獲得的利益，又焉有甘心為鉅款獻金的傻瓜，讓總統夫婦徒憑國家元首的頭銜，在短短的總統任期之中取得中產之家一世辛勤也無法累積的鉅額財富？起訴而不能定罪的特偵組痛批法官的認知與社會常情落差過大，提起上訴，也就成為當然。

閱讀本案判決文之後，我們必須指出，由周占春、林柏泓、何俏美三位法官組成的合議庭，在其論證頗為豐富的判決書中，已經寫明：「法官之判決與一般未經嚴格驗證的『常識』、『直覺』想當然爾所得致之結論，或許偶爾會有某些差異存在」；司法不能「淪為特定政治勢力的操控工具」。也就是說，本案審判庭拒絕依據政治立場、一般常識或者是國民感情做為論罪的基礎，因此而引發激烈的政治社會反應，也在其意料之中，檢方希望上訴翻案，若是不能依法論法有效論罪，而僅僅是訴諸激情，恐怕不是辦法。

北院的判決論證無罪的主要基礎，在於檢方起訴的依據，是貪汙治罪條例禁止公務員「對於職務上之行為」收受賄賂或不正當利益的規定，卻講不出總統介入金控合併的行為是「職務上行為」的道理，證明其所收取的就是「賄賂」。判決書中歷數憲法解釋資料，詳為引證總統的職權已經憲法列舉，不能直接指揮行政院人員，約見或致電政府首長，指派總統府副秘書長要求部長如何行事，確是「逾越」總統職權，但不能構成「職務上行為」的犯罪。總統夫婦因此無罪。

立足於此一法律邏輯的判決詭辯，忽略了一個基本的法理觀念：憲法的規定，是用來規範國家元首的濫權行為，而不是用來為濫權行為脫罪的。憲法為了保障國家元首的尊榮，特別賦予總統於在任期間，不受刑事追訴的豁免特權；大法官在地院判決中的憲法解釋中，曾告訴聲請解釋的陳前總統，總統的刑事豁免權不是絕對的，不是終身享有的。任期中的刑事犯罪行為，在任滿後還是要受到追訴的。憲法主要目的在於限制濫用政治權力，不是提供為濫權行為脫罪的根據。其實，總統，或是任何公務員犯罪，都不會是「職務上之行為」，其基本態樣是「利用職務」犯罪。貪汙治罪條例同時處罰「利用職務上之機會詐取財物」及「對於職務上之行為收受不正利益」，道理在此。總統夫婦收取的款項，不論是否為賄賂，要是不正利益，已是構成貪汙。利用總統的辦公室，差遣總統府人員介入金改，也就是藉用「國家元首」的光環與身分，做出違背憲法以牟取鉅額財富，恐怕不是憲法想要庇護的基本人權吧！憲法本是死物，能不能成為防止政治權力濫用政治權力，的確需要法院善加體會，解釋適用才能奏功，關鍵是要學會正確認識憲法的意旨才行！

本案的判決所以做出無罪的判決，不但繫於法院對於憲法的認識與教育是否應該進一步加強，也在於法官只看到了總統濫用職權「不是」職務上行為，卻不去論述是否為「利用職務上之機會」貪汙的問題，這究竟是檢方起訴的偏誤，還是法院判決時的明察秋毫而不見輿薪，上訴二審時，一定要釐清。

法院判決，當然不能根據常識或激情定罪，但也回答一個問題，總統夫婦推動政府進行金融改革，收了那麼多的金錢，不是法律上說的貪汙，是法律規定少了？檢方起訴錯了？還是因為受到了政治干預？數以萬字計的判決對此沒有說明，因而受到社會非議，不能說是冤枉。

台北地院的判決，也許至少釐清了一項長期存在的錯誤觀念。現在我們可以說了，法院還真不是國民黨開的！