Chen's Secret Diplomacy: Real or Phony?

Chen's Secret Diplomacy: Real or Phony?
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
December 14, 2010

Summary: The Supreme Court has ordered the four Chen corruption cases retried. It has decided that the Full Court under High Court Judge Cheng Shen-yi should preside. The most critical aspect of the case is determining the amount of money Ah-Bian and Ah-Cheng illegally acquired from the State Affairs Fund. Future trial courts must come clean on Chen's so-called secret diplomacy. Was it for real, or was it phony. The answer has a bearing on the president's conduct, therefore it must be made crystal clear. If one cannot understand the crime, one cannot successfully prosecute someone for the crime.

Full Text below:

The Supreme Court has ordered the four Chen corruption cases retried.
It has decided that the Full Court under High Court Judge Cheng Shen-yi should preside. The most critical aspect of the case is determining the amount of money Ah-Bian and Ah-Cheng illegally acquired from the State Affairs Fund.

According to the Punishment of Corruption Act, the harshest penalty that can be imposed in the Chen family corruption cases, is life imprisonment.
The court of first instance found Ah-Bian and Ah-Cheng guilty of illegally pocketing over 100 million NT. Of that, 72.4 million was obtained through embezzlement, and 35 million was obtained through fraud. That is why they were given life sentences. The court of second instance drastically reduced the amount the First Couple were charged with illegally pocketing. It charged them with embezzling only 14 million NT,
then reduced their sentences to 14 years.

Assume their life sentences are confirmed. If so, then it will not matter how many more crimes they are charged with. The result will still be life imprisonment. Corruption is no longer punishable by death. Assume they are given a number of prison sentences of differing duration. According to existing laws, the most they can be sentenced to is 30 years. Chen was involved in a long list of major felonies. Assume he evades a life sentence.
He will still have to serve the maximum sentence -- 30 years. The only difference arises when he applies for parole. If a convict has been sentenced to life, he must serve at least 25 years before being paroled.
But if he is not sentenced to life, he must serve at least half of his original term before being paroled. If he has been sentenced to 30 years, he can be paroled after serving only 15 years. The amount of time Ah-Bian and Ah-Cheng serve could vary by as much as 10 years.

Why was there such a huge discrepancy between the rulings handed down by the first instance court and the second instance court? Compare and contrast the justifications cited in each case. The second instance court adopted the most lenient attitude it could. Many indeterminate Chen family expenses and so-called secret diplomacy expenses were classified as presidential office expenses, therefore not included as part of the indictment. The Supreme Court looked at this reasoning, then sent it back and demanded that it be reexamined. The Supreme Court chastized the second instance court for pulling its punches on many of the charges. Such leniency will no longer be tolerated.

Chen Shui-bian personally approved the state affairs fund expenditures.
Therefore the first instance court ruled that he was clearly aware that the Chen family's private expenditures had been illegally reported as official expenditures. The judge who presided over the first instance court cited
Chen Chih-chung's 2006 wedding motorcade, which ran roughshod over the law, provoking public criticism. He noted that Chen Shui-bian personally issued a press release and explained that the Chen family "must pay the fine." Yet in his state affairs fund expenditures made Chen Shui-bian's criminal intent abundantly clear.

The judge also pointed out that beginning in August 2006, when Chen Shui-bian came under investigation, three secret diplomacy projects had expanded to six. At the time, Chen insisted that "I have already told you everything." Nevertheless in 2007 further investigation revealed, to everyone's amazement, that the number of secret diplomacy projects had been increased twice, and now numbered a whopping 56. Further investigation showed that every one of these projects was fraudulent.
That is why the judge said Chen Shui-bian "admitted guilt only after the prosecutors uncovered the truth." Chen Shui-bian was simply lying to cover up his crimes. Knowing this, the first instance court found the Chen family guilty of using fake invoices and fake rosters to conduct fake secret diplomacy. The secret diplomacy Chen conducted, and the state affairs funds he embezzled were criminal proceeds, and warranted a life sentence.

The Chen family charged everything to the state, including pet care expenses, tea leaf expenses, banquet expenses, incidental household expenses, and Wu Shu-chen's personal expenses. Yet the judge who presided over the original second instance court alleged that "No evidence suggests that these expenditures had anything to do with the duties of the president." He said also that Wu Shu-cheng was "authorized by Chen Shui-bian to help him fulfill the official duties of the president." He said no one could prove that the state affairs fund had no relationship with the president's official duties. The second instance court ruled that there was "little suspicion any crime had been committed," and excluded these expenditures from the list of charges. The Supreme Court however, sternly rebuked the second instance court for this ruling, and noted that another court may well hand down an entirely different ruling.

The judge said nothing about the authenticity of the so-called secret diplomacy projects. He said nothing about why Chen Shui-bian fabricated these projects to obstruct investigations into his crimes. He merely concluded that such expenditures may have been made, but failed to prove that Chen Shui-bian had misappropriated state affairs funds.
A number of private Chen family expenditures could not be explained away. The judge who presided over the second instance court concluded therefore they had been charged to the state affairs fund, and ruled accordingly. But in spite of such lenient standards, Chen Shui-bian could not escape a 14 year prison sentence. This proves that the Chen family deserves no sympathy for its state affairs fund crimes.

Future trial courts must come clean on Chen's so-called secret diplomacy.
Was it for real, or was it phony. The answer has a bearing on the president's conduct, therefore it must be made crystal clear. If one cannot understand the crime, one cannot successfully prosecute someone for the crime.

更審須對扁案機密外交真偽再作認定
【聯合報╱社論】 2010.12.14

最高法院將扁家四大弊案發回更審，並已完成分案由高等法院沈宜生法官合議庭承審；更審將如何認定扁珍侵占、詐取的國務機要費金額，應當是全案最關鍵的地方。

該案起訴的貪汙治罪條例的法條，最重刑度達無期徒刑，是扁家涉案刑度最重的；而第一審認定扁珍就此貪汙超過一億餘元，其中侵占七千二百四十萬、詐取三千五百零二萬，故判無期徒刑。原第二審判決則大幅降低金額，僅剩侵占一千四百餘萬元，故改判有期徒刑十四年。

如果判決無期徒刑確定，最後不論再判多少刑，定執行刑的結果還是無期徒刑（死刑除外，但貪汙罪已無死刑）。若判決多個有期徒刑確定，則依現行法定執行刑，最重為三十年；以扁所涉多項重罪而言，即便均以有期徒刑定讞，最後所定執行刑恐怕免不了會到最重極限的三十年。兩者差別在於服刑後申請假釋時，無期徒刑必須服滿二十五年；有期徒刑則須達二分之一以上，以三十年計算，即為十五年。亦即扁珍坐牢獲得假釋的最短時間相差十年。

第一審判決和原第二審判決何以有如此重大歧異？比較兩份判決理由，可以看出原第二審判決對扁的答辯，採取了最寬鬆的態度，所以許多用途不明的扁家雜支、一大堆以代號稱之的所謂秘密外交開支等等，均認為與扁的總統職務有關，而予以排除。這種認定的邏輯在最高法院發回更審後，自須再受檢驗；由於最高法院已經指摘原第二審判決對部分被告刑度無端放水，則此種較寬的認定標準，恐怕不易被更審法院全盤接受。

第一審判決指出，陳水扁曾親自審閱國務機要費的開支明細，當然會知道扁家的私人開支也拿來充數。第一審法官還以九十四年間陳致中娶妻時迎親車隊違規罰款引起社會批評之例，指當時陳水扁親自指示發新聞稿說明扁家「必定自繳罰款」，結果卻是國務機要費支出，足見陳水扁的犯意明顯。

接著法官又指出，陳水扁自九十五年八月接受本案偵辦起，將秘密外交項目由三項說成六項，當時還聲稱「我已經全部說出來了」；結果到九十七年間再調查時，竟又兩次增加秘密外交項目最後高達五十六項。而這些項目，經查都屬虛假，所以法官說陳水扁是「隨著檢察官查明虛假就再提」，根本都是陳水扁掩飾犯罪的謊話。基於這樣的認知，所以第一審認定扁家以假發票、假犒賞名冊、假秘密外交等等手段詐取、侵占的國務機要費都是犯罪所得，而予重判無期徒刑。

原第二審判決的法官卻說，扁家貓狗開支、茶葉、宴客、民生寓所各項雜支等等，以及吳淑珍作主的支出，「統統沒有證據證明和總統職務無關」；吳淑珍也是「獲得陳水扁授權協助執行總統職務」，其動支國務機要費也不能認定與總統職務無關。原第二審對這些部分依「罪疑惟輕」法理，均排除於犯罪之列；但最高法院對此既有嚴正的質疑和指摘，更審自仍有再作認定的空間。

至於所謂秘密外交部分，法官完全不提這些秘密外交項目的真偽問題，以及陳水扁為何要捏造這些項目來應付偵辦；而逕自認定開支既確有其事，即不能認定陳水扁侵吞國務機要費。因此，原第二審判決的法官只認定一些實在無法解釋的扁家私人開支而報領國務機要費者，也只據此給予判刑；但在這麼寬鬆的標準之下，陳水扁還是難逃十四年的重刑，也足見扁家貪汙國務機要費的行為實在是無可憫恕。

未來更審法院必須要交代清楚所謂秘密外交等項目的真偽，畢竟這與總統操守的界際有關，含糊不得。若不徹底釐清犯罪事實，就不能真正地「定罪」。