Heavy Sentence: Chen Shui-bian Profited from his Position as President

Heavy Sentence: Chen Shui-bian Profited from his Position as President
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
October 14, 2011

Summary: The High Court has delivered its second instance verdict in the Chen family "Second Financial Reform" corruption and bribery scandal. It overturned the Not Guilty verdict rendered by the Full Court of the Taipei District Court presided over by Chou Chan-chun. It ruled that Chen Shui-bian abused the power of the presidency to extort money from the financial industry. It found Ah-Bian, Ah-Cheng and other accomplices guilty of corruption and imposed stiff sentences upon them.

Full Text Below:

The High Court has delivered its second instance verdict in the Chen family "Second Financial Reform" corruption and bribery scandal. It overturned the Not Guilty verdict rendered by the Full Court of the Taipei District Court presided over by Chou Chan-chun. It ruled that Chen Shui-bian abused the power of the presidency to extort money from the financial industry. It found Ah-Bian, Ah-Cheng and other accomplices guilty of corruption and imposed stiff sentences upon them.

The court of the second instance found that while Chen Shui-bian was Republic of China President, he "abused his power to amass wealth. He treated the office of the president as a tool for conferring political advantages in exchange for cash payments from wealthy conglomerates." He "betrayed the public trust. Nothing could be worse than that." Addressing Wu Shu-cheng's corruption, the court said she "secretly colluded with industry heads, abused political power, exceeded her authority, and accepted bribes from businesses. Hundreds of millions of dollars came and went. The presidential palace was turned into a trading center." This is what the public collectively witnessed during the trial. This is what Chou Chan-chun conceded took place. Yet, incredibly, Chou Chan-chun handed down a Not Guilty verdict. Fortunately, the court of second instance was around to remedy Chou's travesty of justice.

Chou Chan-chun ruled that the "Second Financial Reforms" were not constitutionally mandated presidential powers. Chou ruled that the vast sum of 500 million dollars was comprised entirely of campaign contributions, Chou ruled that when the president pocketed the money, his conduct bore no relation to his presidential duties. Therefore he was not guilty of political corruption. His ruling was so mind-boggling it provoked a nationwide uproar. Soon afterwards, the High Court handed down another ruling on the Chen family corruption scandal. It adopted an entirely different view than Chou Chan-chun regarding the conduct of the president, It soon became clear that once the "Second Financial Reform" scandal was reviewed by the court of second instance, Chou Chan-chun's ruling would be overturned.

The Supreme Court and the High Court both ruled that as long as the president's conduct bears a relationship to his official duties, it is substantially affected by his official position. Therefore it amounts to job related conduct. The High Court further pointed out that seven constitutional amendments have been passed and presidential powers have been steadily expanded. Constitutional Interpretation No. 520 states that the President has the right to appoint and remove the Premier. Constitutional Interpretation No. 61 interprets and explains the powers of the executive, from top to bottom. Furthermore, when Chen Shui-bian was president, the Chen family was implicated in four scandals, including the Longtan Land Purchase scandal, and the Diana Chen scandal. During a television interview, Chen himself declared that the president has substantial authority to formulate Executive Yuan policy and make personnel appointments. Therefore the "Second Financial Reform" was well within the purview of the president, Chen Shui-bian took advantage of his official position to extort and receive bribes. Of course this qualifies as job related conduct.

Chou Chan-chun's ruling was utterly divorces from reality in other ways. Chen Shui-bian extorted 500 million dollars from Cathay Financial Holdings and the Yuanta Ma family. Chou ruled that the entire sum was campaign contributions. But during the second instance trial the High Court found that Chen Shui-bian and Tsai Hung-tu reached a bribe agreement in May 2002. The High Court found that later Chen Shui-bian abused his official powers to help Cathay Financial Holdings acquire United Bank. In September 2002, October 2003, and September, 2004, Chen demanded and received 100 million dollars in bribes from Tsai Hung-tu. On two occasions Ma Yung-cheng went to Tsai Hung-tu's home to obtain the bribes. On the remaining occasion Tsai Cheng-yu visited the presidential mansion and delivered the money to Wu Shu-cheng. This 300 million bore a direct relationship to Chen Shui-bian's official position. Chen Shui-bian argued that Tsai Hung-tu's 300 million dollars were campaign contributions, His claim was less than credible.

While addressing the role of the Yuanta Ma family, the court ruled that Tu Li-ping told Ma Chi-ling that Wu Shu-cheng demanded 200 million dollars in bribes. Ma Chi-ling blurted out "This is a total rip-off!" But the Ma family paid up anyway, in exchange for Chen family assistance in acquiring Fuhua. Therefore the High Court determined that Chen family claims that the funds were merely campaign contributions were simply not credible.

The High Court found Chen Shui-bian guilty of corruption and money laundering. It sentenced him to 18 years in prison and fined him 180 million dollars. It ruled that 500 million dollars in illicit gains amassed via corruption must be recovered and confiscated. It found Wu Shu-cheng guilty in the Yuanta Ma family scandal and sentenced her to 11 years in prison, It fined her 120 million dollars. She and Chen Shui-bian will have 200 million dollars confiscated from them. Other accomplices will also be prosecuted. Chen Shui-bian will have to serve a lengthy sentence. But no matter what sentence Wu Shu-chen receives, she is unlikely to actually serve any real time. Attempts to recover the money from the Chen family will probably be unsuccessful. Therefore, although the court has imposed a heavy sentence, the real world impact will be light. All it will do is proclaim to the nation that justice has been served.

Chen Shui-bian has the right to appeal the High Court ruling, Therefore we are still a long way from the final verdict. We saw Chou Chan-chun's ruling overturned by the High Court. We saw the courts perform a complete about face. Different level courts arrived at different opinions. Some of the opinions reflect the opinions of some officials within the justice system. Some of the opinions reflect the feelings of the public and their common sense understanding of the law, This goes without saying. But the reversals generated controversy and confusion. They blurred the standards of right and wrong. We sincerely hope, that in future cases that attract public attention, justice can prevail.

重判理由：陳水扁藉總統職務牟利
【聯合報╱社論】 2011.10.14

扁家二次金改弊案，台灣高等法院二審宣判，徹底推翻了台北地方法院周占春合議庭的無罪見解，認定陳水扁向金融界索賄乃總統職務上受賄，將扁珍及相關人員以貪汙罪判處重刑。

二審判決指出：陳水扁擔任中華民國總統，卻「以權生錢，將總統職務上行為作為牟利工具，換取財團金錢之支付」，「背棄民意，莫此為甚」。在論及吳淑珍時則說：「與企業主私相來往，操弄權勢，失所分際，且收受企業給款，億來億去……，一時總統官邸宛如金融交易中心。」以上皆是國人透過審判共見的情狀，其實亦是周占春大體認定之事實；但周占春竟能判為無罪，今幸有二審予以匡正。

周占春的判決見解，認為二次金改非總統憲法上列舉的職權，所收五億巨款全部是政治獻金，而認定總統拿錢非職務上行為，不能治以貪汙罪；如此脫離現實的判決一出，舉國譁然。但不久之後，最高法院另就扁家四大弊案作出判決，關於總統職務上行為，採取了與周占春截然不同的見解，當時已可預見二次金改弊案上訴至二審，周占春的見解必遭推翻。

最高法院與高等法院皆認為，只要總統的行為與其職務具有關連性，實質上為該職務影響力所及，就算是職務上行為。高等法院二審判決更進一步指出，歷經七次修憲，總統職權不斷擴大，釋字五二○號解釋說明總統藉任免行政院長之權而得以推行政見，釋字六一三號解釋又說明行政權上下一體；況且，陳水扁擔任總統期間，就扁家四大弊案之中的龍潭購地案、陳敏薰案，接受電視台專訪時，自己也表示，總統對於行政院各部會政策及人事均具有實質決定權。因此，二次金改當然為總統職務影響力所及，陳水扁藉此索賄、受賄，當然是職務上行為。

周占春另一個脫離實際的看法，是將陳水扁向國泰金控蔡宏圖和元大馬家索取的共計五億元巨款，全部都認定是政治獻金。但高等法院在二審判決中指出，陳水扁與蔡宏圖於九十一年五月間就達成期約賄賂的協議；之後，陳水扁以其職務上行為協助國泰金控合併世華銀行，再於九十一年九月，九十二年十月，九十三年九月，各向蔡宏圖要求並收受各一億元賄賂，兩次由馬永成前往蔡宏圖住處取款，一次由蔡鎮宇持往總統官邸交付吳淑珍。這三億元與陳水扁職務上行為具對價關係，陳水扁辯稱蔡宏圖所交付之三億元係政治獻金，不足採信。

至於元大馬家的部分，判決指出，杜麗萍將吳淑珍索討二億元賄款之意轉達予馬志玲、馬維建、馬維辰等人，馬志玲當場曾脫口而出「這簡直是在敲竹槓」；但馬家仍決定給付，以換得扁家的協助，合併復華。因此，高等法院認為，政治獻金的說詞根本不可採信。

高院判處陳水扁貪汙、洗錢等共應執行有期徒刑十八年，併科一億八千萬元罰金，貪汙所得五億元應追繳沒收。吳淑珍也就共犯元大馬家部分判處十一年，併科一億兩百萬元罰金，與陳水扁連帶追繳沒收二億元。其他一干人犯當然也各判刑。不過，陳水扁固將長期服刑，但吳淑珍判多少刑都是白判，且追繳扁家的錢恐怕也不會順利；因此，法院雖判重刑，實質上能執行的部分不多，只能算是召告國人，宣示正義。

高院判決之後，陳水扁有權上訴，因此距判決確定還有一段長路要走。只是在這段實現司法正義的過程中，我們看到了由周占春到高等法院的判決大轉彎，見解大轉折。兩個審級的見解，何者與多數司法人員的看法相同，何者更貼近一般國民的常識和法律感情，相信不言可喻。但轉折的過程，仍然帶來社會的爭議和紛擾，模糊了是非的標準和價值的判斷。就此而言，我們懇切期望，未來眾所矚目的官箴大案，皆能表現出這個國家的公理是非。