Pardon for Chen Shui-bian: Only with Admission of Guilt and Expression of Remorse

Pardon for Chen Shui-bian: Only with Admission of Guilt and Expression of Remorse
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
June 9 2012

Summary: There has been much discussion about how Chen Shui-bian should serve out his prison term. One possible solution is for the president to grant Chen a pardon after all his cases have been adjudicated. But Chen Shui-bian must first admit guilt, express remorse, and offer the public a good faith apology.

Full Text below:

There has been much discussion about how Chen Shui-bian should serve out his prison term. One possible solution is for the president to grant Chen a pardon after all his cases have been adjudicated. But Chen Shui-bian must first admit guilt, express remorse, and offer the public a good faith apology.

Granting pardons is a presidential prerogative. But the president may not behave like a "Great Dictator" or "His Imperial Highness." The President may grant a pardon. But he must consider the principle of justice. He must heed the feelings of the nation. He may not do whatever he pleases.

Former South Korean President Chun Doo-hwan was originally sentenced to death for corruption. His sentenced was commuted to life imprisonment. Roh Tae-woo was originally sentenced to 22 years and six months for corruption. His sentence was commuted to 17 years. Chun and Roh both admitted guilt, apologized, and expressed remorse to their political parties and to the Korean people. Only then did President Kim Dae-jung grant them pardons. Chun and Roh expressed their gratitude to the Korean people. Chun Doo Hwan retreated to a monastery. Question: If Chun Doo Hwan and Roh Tae-woo refused to admit guilt, express remorse, and offer apologies, would Kim Dae-jung have granted them pardons? Would the Korean people have agreed to granting them pardons?

"I refuse to admit guilt. But I demand a pardon." This has been the mistaken strategy adopted by Chen and his supporters. This epitomizes the attitude, "Better that I should be indebted to the world, than the world should be indebted to me." Ironically by clinging to this position, Chen Shui-bian has painted himself into a corner. Clinging to this position has led to a stalemate which has made a pardon impossible. To expect President Ma to pardon Chen Shui-bian when Chen refuses to admit guilt, express remorse, and offer an apology, is expecting too much. A majority of the public would ever consent.

Character determines destiny. Chen Shui-bian obstinately refuses to admit guilt and express remorse. This has led to an impasse that makes a pardon impossible. The more Chen Shui-bian refuses to admit guilt and offer an apology, the longer the case drags on, and the harder it is for him to reverse himself. Chen Shui-bian has already decided never to reverse himself, never to admit guilt or offer an apology. How can anyone offer him a pardon? This is a vicious circle that persists even now.

Chen Shui-bian and his supporters have discovered that refusal to admit guilt while demanding a pardon is self-contradictory. As a result they are now demanding medical parole. Others, such as Buddhist Master Hsing Yun, have humanitarian concerns. Hhe has proposed the "Chang Hsueh-lang model" of house arrest. These calls already violate existing legal provisions.

Two views have emerged. One side argues that Chen Shui-bian "after all, served as president for eight years." Therefore he should receive special treatment. Two. Another side argues that the president commiting a crime is more serious than an ordinary person committing a crime. In fact, since Chen Shui-bian entered prison, the public and judicial authorities have been divided between these two views. Most people think the Chen Shui-bian case is a chance to improve conditions for all inmates. If conditions for Chen Shui-bian are improved, then conditions for all inmates should be improved. If Chen Shui-bian is allowed to have hot baths, then other inmates should also be allowed to have hot baths. If Chen Shui-bian is allowed to appear in court without handcuffs, then other inmates should also be allowed to appear in court without handcuffs. These two views can be implemented simultaneously. In a democratic society under the rule of law, this is the right way to deal with such problems.

Some argue that Chen Shui-bian "after all, served as president for eight years." In fact, the prison system, as one might imagine, has bent over backwards to accomodate this "super inmate." Chen Shui-bian has been provided with every nicety the law allows. Demands that he be provided with reasonable and humanitarian accommodations have ensured that Chen Shui-bian, as "former president," is treated better than other inmates. His cell is 1.3 Pings in size. Approximately 4.3 SM. This is standard. But whether he wishes to live alone, and whether he wishes to work in the prison workshop, have all been left up to Chen Shui-bian himself. Chen Shui-bian's medical problems have been attended to four times. His medical care was overseen by Doctor Ko Wen-Je of National Taiwan University Hospital. Ko confirmed that Chen had blood clots, not tumors, within his prostate. Should Chen be allowed medical parole? That is specified by law. Both "former presidents" and "ordinary people" should receive the same treatment, under the same set of rules. One may not operate outside the law.

We have always believed that the crux of the matter in the Chen corruption case has been the crime rather than the punishment. Chen Shui-bian owes the nation and society so much, and not just for his corruption, He owes them even more for his refusal to admit guilt, express remorse, and offer an apology. The public feels Chen Shui-bian admitting guilt, expressing remorse, and offering an apology is more important than increasing his punishment. The public feels that if he does not admit guilt, express remorse, and offer an apology, then it has no reason to pardon him.

A presidential pardon, medical parole, and improved prison conditions all pertain to the rule of law. But they also pertain to peoples differing concepts of justice. But the decision to admit guilt, express remorse, and offer an apology is Chen Shui-bian's alone. Why doesn't Chen Shui-bian admit guilt and express remorse to the nation and society, in order to win public forgiveness? Why doesn't Chen Shui-bian demonstrate his sincerity though his own efforts, and fight for a pardon? Why has he refused to admit guilt and express remorse for his attempts destroy the nation's laws for his own sake?

The Chen corruption case is the most significant case of its kind in the history of the Republic of China. A president who violated the law has been forced to suffer punishment alongside ordinary people. Chen Shui-bian made all sorts of demands on the nation's laws. But he should also reflect on his own responsibility and apologize to society. Once the cases have been adjudicated, a pardon is an option. After all, the person who created the problem should solve the problem.

Otherwise, Ma Ying-jeou or any other president, cannot grant a pardon to a criminal who refuses to admit guilt and express remorse.

特赦是辦法，但陳水扁應認罪悔過
【聯合報╱社論】
 
2012.06.09

對在監服刑的陳水扁應當如何處遇，一直議論紛紜。我們認為：或許可行的辦法，是在諸案定讞後，由總統給予特赦。但必要的前提是：陳水扁必須真誠地向國人認罪悔罪並道歉。

特赦是總統的特權，但總統不可做「大獨裁者」或「寡人」；總統在行使特赦時，仍必須衡量正義原則，及照應國民感情，不可一意孤行。

韓國前總統全斗煥因涉貪被處死刑後改判無期徒刑而入監，盧泰愚亦因涉貪被處二十二年六月徒刑後改判十七年而入監，全盧二人最後非但認罪，且向所屬政黨及全體韓國人民悔罪道歉；因而，金大中出任總統乃給予特赦，全盧二人向韓國人民謝恩，全斗煥且自此隱居廟中。試問：倘若全斗煥、盧泰愚皆不認罪悔罪道歉，金大中能給予特赦嗎？韓國人又能同意特赦嗎？

「我不認罪，我要特赦」，這是陳水扁及其支持者一開始就誤採的戰略；但這種「寧可我負天下人，不容天下人負我」的姿態，卻使陳水扁將自己陷入牆角。這樣的僵持，使得特赦失去空間；因為，要馬總統特赦堅不認罪悔過道歉的陳水扁，這無疑是強人之所難，也必不能獲得多數民眾的同意。

性格決定命運。陳水扁堅不認罪悔過，造成了特赦的僵局。陳水扁愈不認錯道歉，拖得愈久，自己就愈加回不去了；而陳水扁既已決定不回頭道歉認錯，又如何出現特赦的空間？此一惡性循環，已然存在。

等到陳水扁方面發現「不認罪」與「要特赦」之間有矛盾牴觸，於是又改圖「保外就醫」等路徑；另如星雲大師的人道關懷者主張，可改採「張學良模式」的軟禁，則已超出了現行法律的規制。

於是，出現了兩種觀點。一種認為，陳水扁「畢竟曾任八年總統」，應當優遇；另一種則主張「總統犯法與庶民同刑」。其實，自陳水扁入所入監以來，國人及司法監所當局一直就在尋找上述兩種觀點的平衡；而在大方向上，是朝向如果改善了受刑人陳水扁的處遇，即應一體改善全體受刑人的處遇。例如，回應陳水扁的要求，提供靠背分離式桌椅，其他受刑人一體適用；又為回應陳水扁，放寬提供熱水浴的標準，其他受刑人也一體適用；陳水扁出庭不上銬，也研議調整上銬的規範。我們認為，這是對兩種觀點的兼籌並顧，且是在民主法治社會具有向上及正面意義的應對方式。

陳水扁「畢竟曾任八年總統」，監所為了容置這位「超級受刑人」，其戒慎恐懼、唯恐不周之心情可以想見。法律規定的受刑人權益，陳水扁一樣不會少；而情理可容通的人道處置，陳水扁以「前總統」的身分也只會比別人多。囚房一點三坪，其實是一律的規格；是否獨居，是否下工場，悉聽阿扁之意願。關於陳水扁之健康，則已戒護就醫四次，並在台大醫師柯文哲見證下，證實攝護腺內為血塊，非腫瘤；至於是否「保外就醫」，亦是法律上設置的機制，唯「前總統」與「一般庶民」，亦應在同一標準下一體適用，不宜脫法違法而行。

我們始終認為，扁案的主體是在「罪」，而不在「刑」。同理，陳水扁對國家社會的虧欠，也不只是他的貪腐罪行，而更在他的堅不認罪悔罪道歉。我們相信：一般民眾認為，陳水扁的認罪悔過道歉，比加以刑罰重要；而若不認罪悔過道歉，即沒有理由寬免其刑罰。

關於特赦、保外就醫、改善處遇等，除了關係到法制規定，亦涉及不同的國人各具不同的正義感情；但是，要不要認罪悔過道歉，則只是決定於陳水扁一人的方寸之間而已。然則，陳水扁為何不能為自己的行為，誠心向國家社會認錯懺悔，以取得國人的原諒寬恕，並表現出自己爭取特赦的努力與誠意？卻偏偏要倒行逆施，堅不認錯悔罪，兀自妄圖國法為他一個人曲枉破壞？

扁案對中華民國最大的意義，就是「總統犯法與庶民同罪同刑」。因而，當陳水扁向國法提出種種要求之時，也應反省自己確有無可遁逃的向社會認錯道歉的責任。有了這個領悟，待諸案定讞，或許即有特赦的空間；畢竟，解鈴還須繫鈴人。

否則，不說馬英九，哪一個總統能特赦一