A Morsel of Gruel in a Pot of Mouse Droppings

A Morsel of Gruel in a Pot of Mouse Droppings
United Daily News editorial (Taipei, Taiwan, Republic of China)
A Translation
September 24, 2013

Summary: Those who view the case differently than apologists for Wang and Ker need not feel helpless. The pendulum is swinging in the opposite direction. The pot full of mouse droppings still contains a few morsels of gruel. Such reversals of fortune repeatedly take place on Taiwan, with ECFA, U.S. beef imports, and other political debates. Now is the time for this to take effect in the Wang Ker case.

Full text below:

Wang Jin-pyng and Ker Chien-ming colluded in influence peddling. They were "two mouse droppings who ruined an entire pot of gruel." They were responsible for a constitutional rule scandal. As expected, they cast themselves as Wang and Ker, two heroes standing shoulder to shoulder, in an epic battle against an unjust political system. Suddenly, the public expressed overwhelming support for these two "defiant heroes," these "victims of political persecution."

News of the scandal broke just over ten days ago. For the first few days, there was little latitude to view this case with different eyes. Apologists for Wang and Ker successfully created an atmosphere that stifled all dissent. Many who saw the case differently felt powerless. They wondered "How can a morsel of gruel survive in a pot of mouse droppings?"

Finally however, over the last several days, the pendulum has swung the other way. Many of those who saw the case differently, like morsels of gruel in a pot of mouse droppings, are finally being seen and heard. This may enable the public to achieve a more balanced view of the case. Take three examples.

One. Hong Kong author Ma Jia-hui contributed an article to this newspaper's "Hall of Fame" section. He said that if the case had occurred in Hong Kong, the charge would have been "obstruction of justice." The maximum penalty would have been life imprisonment, the same as for murder. Two. Scholar Liao Yuan-hao noted in this newspaper's "public forum" section that Grand Justices Interpretation 331 states "(Central government representatives without portfolio) who lose their eligibility as elected members of their political party... also lose their eligibility as central government representatives. This is the intent of the constitutional provision for (central government representatives without portfolio)." He also cited the example of 1999 National Assembly Speaker Su Nan-cheng. Su was expelled from the party for presiding over National Assembly Members enriching themselves at the expense of the taxpayers. Three. Scholar Pang Ming-fai blogged that Wang Jin-pyng and Ker Chien-ming should assume political responsibility for their actions and step down. He said the DPP's attempt to topple Ma while rationalizing Ting Ker's crimes, show that the party "lacks any sense of justice." He said the DPP ought to take disciplinary action against the two men. Their "highest goal should be to sacrifice the least to protect the most."

These three views have reaffirmed the truth. Once the scandal erupted, four solutions were possible. One. The responsible parties could resign on their own initiative. This is inevitable in advanced democracies. It is the least costly solution for the public. But it is useless against those who feel no sense of shame.

Two. The two men could be subjected to criminal prosecution. In Hong Kong obstruction of justice would be treated the same as murder. The ROC has a "Legislative Practices Act" that expressly prohibits lawmakers from exerting undue influence in ongoing criminal cases. But it specifies no penalties. Remember the back room deals during the amending of the Sunshine Law and the Accounting Law? The result was no punishment whatsoever was specified for violators. Would a criminal investigation into Wang Jin-pyng's influence peddling prove money changed hands in a "quid pro quo" transaction? Probably not. Proof and conviction could be difficult. Hence the decision to resort to "administrative investigation." This decision led to oversights during the transition. Yet the Speaker of the Legislative Yuan himself alleged the "need for opposition party cooperation to pass the Ministry of Justice budget." He then proceeded to exert undue influence on the criminal justice system, on behalf of the opposition DPP party whip. Such political quid pro quo transactions are actually far more serious than monetary quid pro quo transactions. Yet our nation's laws specify no legal penalties whatsoever for the "murder of criminal justice."

Three. The Legislative Yuan has provisions for internal discipline. But given the political climate in today's legislature, expecting justice is a pipe dream. For example, the DPP took no action whatsoever on Ker Chien-ming. Instead, it rushed to Ker Chien-ming's defense. Instead of imposing party disciplinary measures, it asked that the case be referred to the Legislative Yuan Disciplinary Committee. Is this not a example of "There is simply not justice to be had?"

Four. Consider party disciplinary measures. Politicians who lack any shame are unwilling to admit to wrongdoing and step down voluntarily. They cannot be successfully prosecuted by the criminal justice system. Internal Legislative Yuan disciplinary measures are even less likely to yield results. That was why referring the case to the political parties for disciplinary action was necessary. Let us take a step back for the moment. Criminal prosecution could have proceeded simultaneously. But this is a major case that impacts constitutional rule and criminal justice. The political parties must to seize the initiative and discipline Wang and Ker as soon as possible. They must immediately revoke their party membership. They must prevent the two men from hijacking the Legislative Yuan for their own purposes. How can this not be a constitutional issue? Is this not something for which the price must be minimized and the benefits maximized?

Consider the preceding four choices. Set aside the possibility that the guilty parties might resign. The most effective approach is party disciplinary measures. It is the most practicable. The price paid by the public is minimized. Unfortunately the DPP has lost its soul. It no longer has any party discipline. It no longer has any rationale to offer. The KMT imposed party discipline. Alas, it was defeated by the Taipei District Court's "injunction." This in turn touched off another debate. Is the judge some sort of overlord who outranks the party chairman? Is the judge some sort of overlord who outranks the president? Can the court be permitted to jeopardize political autonomy? Can the court be permitted to intervene in party struggles inside the legislature? Have our judges even read the Constitution? Do they know anything about the legal structures required for constitutional rule and criminal justice? Have they read the Grand Justices' constitutional interpretations? The various political parties have revoked may peoples' party memberships, including Lee Teng-hui, Hau Pei-tsun, Lin Yang-kang, James Soong, Su Nan-cheng, Tseng Li-wen, Chiu Chang, Lin Yi-shi, Lai Su-ju and Simon Lin.

Those who view the case differently than apologists for Wang and Ker need not feel helpless. The pendulum is swinging in the opposite direction. The pot full of mouse droppings still contains a few morsels of gruel. Such reversals of fortune repeatedly take place on Taiwan, with ECFA, U.S. beef imports, and other political debates. Now is the time for this to take effect in the Wang Ker case.

一鍋老鼠屎裡 仍要作一粒粥
【聯合報╱社論】
2013.09.24 03:28 am

王金平與柯建銘聯手關說司法個案，原是一樁「兩顆老鼠屎，弄壞一鍋粥」的憲政醜聞；詎料，竟儼然演變成王柯兩人聯袂挑戰不公不義的政治架構的悲壯史詩。一時間，社會上對兩位政治「抗爭英雄」的支持排山倒海，對這兩位政治「受難者」的同情亦是鋪天蓋地。

在十幾天前本案剛爆發的頭幾日，欲對此案提出一些相對的看法幾乎沒有任何空間，挺王挺柯的氛圍濃到令人窒息，許多對此案持不同看法者，大抵都有一種無力又無奈的感受：「在一鍋老鼠屎裡面，要如何作一粒粥？」

終於，最近幾日，鐘擺漸漸盪了回頭，許多相對的見解有如一度被老鼠屎淹沒的粥粒，逐漸露出頭角，使社會對此案之認知似有漸趨平衡的可能性。茲舉三例：

一、香港作家馬家輝在本報《名人堂》說：此案若發生在香港，是「妨害司法罪」，最高刑罰是終身監禁（無期徒刑），「跟謀殺罪同級」。二、學者廖元豪在本報《民意論壇》指出：大法官釋字三三一號解釋：「（不分區中央民代）如喪失其所由選出之政黨黨員資格時……自應喪失其中央民意代表之資格，方符憲法增設此制度（不分區中央民代）之本旨。」並舉一九九九年國民大會議長蘇南成，因主持國代「延任自肥」之決議遭開除黨籍之例。三、學者彭明輝在其部落格指出，王金平及柯建銘皆應負起政治責任自請下台，而民進黨殺馬挺柯，「真的是沒有天理！」並認為，用黨紀處分二人，是「以犧牲最小的目標，來保護最高的目標」。

以上三人的觀點，已足重建本案的原來面貌。本案發生後，約有四種可能的解決方案：一、當事人主動引咎辭職。這可謂是在民主先進國家的必然結果，也是社會成本最小的方案；但對無廉恥者無效。

二、訴諸司法訴訟。如香港可究以「與謀殺罪同級」的「妨害司法罪」。但是，儘管我國《立法委員行為法》亦明文禁止立法委員對進行中的司法案件從事遊說，卻未備罰則（請回憶陽光法案及《會計法》修正案的立法黑幕），因此根本無由訴諸刑罰。至於能否以「刑事偵查」追究王金平是否涉及關說，也因查無金錢交易的「對價關係」，難涉刑罰，因此始改由「行政調查」處理此案，其中並出現了「換軌」時的粗糙痕跡。然而，堂堂立法院長以「需要反對黨配合通過法務部預算」而為反對黨之黨鞭介入司法，這種「政治對價交易」其實較「金錢對價關係」尤為嚴重，但我國法律居然對此種「謀殺司法」的罪行全無「罪刑法定」之規範。

三、從事立法院自律。但以立院今日生態，這簡直是痴人說夢。試看：民進黨在黨紀上對柯建銘全無動作，柯建銘卻反而叫囂「自請移送立法院紀律委員會」處理，但何不自請黨紀處分？這豈非「真是沒有天理」？

四、由黨紀處分。無廉恥的政客不願認錯自行卸職，循司法途徑又無法可依，立法院自律更無可能；因而，黨紀處分遂為必要之手段。退一萬步言，即使司法訴究仍可同步進行，但對涉及憲政正義如此嚴重的巨案，各政黨若能主動從速以黨紀將王柯二人以撤銷黨籍之方法立即撤銷其立法委員之資格，以避免二人挾持立院進行抗爭，難道這不是憲政之至理？難道這不是「以犧牲最小之目標，來保護最高之目標」？

在前述四種選擇之中，除當事人引咎辭職外，其實是以黨紀處分較具效率、較符實際，且社會成本最小。但是，民進黨的黨魂已死、黨紀已死，固無論矣；國民黨則雖以黨紀處理，卻敗於台北地方法院的「假處分」訴訟。這又引爆了另一層面的爭論：法官是否太上黨主席？法官是否太上總統？法院是否可以僭越政黨自治？法院是否可以介入立法院的黨爭？我們的法官讀不讀憲法？懂不懂憲政正義的結構因素？看不看大法官的解釋文？有沒有斟酌過各政黨曾經以撤銷黨籍以上之處分，開革過李登輝、郝柏村、林洋港、宋楚瑜、蘇南成、鄭麗文、邱彰、林益世、賴素如及林世嘉？

倘若你對此案仍有不同於王柯支持者的看法，或許不必感到無奈與無力；因為，鐘擺似乎就要盪回頭了，這種「在一鍋老鼠屎裡，仍應堅持作一粒粥」的故事，其實在台灣不斷重複上演。在ＥＣＦＡ、美牛案及無數政治辯論中皆曾演出過，只是如今又異曲同工地換到了王柯案。