Can Public Sentiment Lead to Legislation Against Obstruction of Justice?

Can Public Sentiment Lead to Legislation Against Obstruction of Justice?
United Daily News editorial (Taipei, Taiwan, Republic of China)
A Translation
October 11, 2013

Summary: Language affects cognition. Cognition affects judgment. Wang Jin-pyng and Ker Chien-ming's exerting of undue influence on the criminal justice system has led to widespread controversy. Many have expressed concern over influence peddling. The laws against influence pedding are inadequate. Legislators are "expressly prohibited" from exerting undue influence on the criminal justice system. Yet no penalties are specified. No one is minding the store. The laws urgently need amending. Only then can we prevent politicians from continuing to abuse the system.

Full text below:

Language affects cognition. Cognition affects judgment. Wang Jin-pyng and Ker Chien-ming's exerting of undue influence on the criminal justice system has led to widespread controversy. Many have expressed concern over influence peddling. The laws against influence pedding are inadequate. Legislators are "expressly prohibited" from exerting undue influence on the criminal justice system. Yet no penalties are specified. No one is minding the store. The laws urgently need amending. Only then can we prevent politicians from continuing to abuse the system.

Most people think "lobbying" is nothing more than "seeking assistance" or "requesting intercession." But lobbying more often than not, refers to official actions that influence policies or interests relevant to the lobbyist. If a criminal justice case is involved, lobbying may well involve "obstruction of justice" or "undue influence." In Western countries under the rule of law, different types of lobbying are subject to different laws. The definitions are crystal clear. But on Taiwan, vague definitions lead many people to conclude that they are "pretty much the same thing."

Controversy over wire tapping persists. Influence peddling on the other hand, has almost been totally forgotten. But overseas, people see thi8ngs very differently. Hong Kong writer Ma Jiahui said, "A Speaker of the Legislature lobbying a Minister of Justice, assuming it actually happened, constitutes "obstruction of justice," an extremely serious crime under Hong Kong's common law. Taiwan reporters stationed in the United States also noted that under U.S. law, the case involves at least two crimes. One is "undue influence." The other is "obstruction of justice," an even more serious crime punishable by imprisonment.

Ma Jiahui said he was puzzled because "influence peddling on Taiwan is actually not regulated by law." He was even more flabbergasted by the fact that "so far there have been no demands for legislation to regulate such lobbying." Hong Kongers who dig deeper will uncover one of the key problems in this case: guanxi vs. morality. Ma Ying-jeou's image has suffered from allegations of "heartlessness." These have prevailed over his insistence on upholding justice. He probably feels bewildered. His admiration for democracy on Taiwan has probably been severely tested.

Among ethnic Chinese societies, British influenced Hong Kong has the strongest rule of law tradition. It is said that "Hong Kong may lack democracy, but it has the rule of law." People on Taiwan are proud of their democracy. But the Ma Wang incident shows that by international standards "Taiwan may have democracy, but it lacks the rule of law." It shows that a champion of the rule of law turned president who is determined to uphold justice, cannot win. Wang Jin-pyng rationalized away his exerting of undue influence as an "expression of concern." A substantial proportion of the public has uncritically swallowed his argument. Elected representatives accused of exerting undue influence spin their conduct as "serving their constituents." They act as if it is the most natural thing in the world. The culture of "guanxi" is deep-rooted. But is it it really insoluble?

Western scholars evaluating the cultural influence of Confucianism on emerging Asian nations often note how nepotism undermines clean government and industrial modernization. People on Taiwan may tolerate "guanxi" in the private sector. But at the very least they should not tolerate it in the public sector. They must not tolerate the politically privileged engaging in the obstruction of justice. Otherwise, how can we call ourselves a democracy under the rule of law? How can NGOs monitoring the government according to the law call themselves "civil society?"

Real progress has been made toward the rule of law . But loopholes also abound. Keelung Mayor Chang Yung-tung exerted undue influence in a drunk driving case. He slammed his palm down on a desk and cussed people out in a police station. He was prosecuted for "obstructing the performance of official duties." An unsuccessful Control Yuan impeachment effort led to a public outcry. Over the years, how many traffic tickets have been torn up as a result of elected officials peddling influence on behalf of the public? More and more sweetheart deals. corruption, and dereliction of duty have been prosecuted. Take the recent CNPC general manager appointment case. Reporters noted how some parties persuaded legislators to "mediate." An enraged Minister of Economic Affairs immediately reassigned personnel. The public praised the minister for his iron rule, They agreed that his was the only way to put an end to the culture of "guanxi." Take the Lin Yi-shi corruption case. The law of course prohibits extorting "political contributions." But one aspect in particular most shocked the public, namely when Lin intervened in state-owned enterprises and declared that "I am in charge of the national treasury." Lin openly boasted that he was enaged in what the rest of the world calls "peddling influence." This is "lobbying on behalf of the politically privileged." Is there really no solution to this problem?

People here may consider "guanxi" as no big deal. But "obstructing the performance of official duties" and the "obstruction of justice" are different. Speaker of the Legislature Wang Jin-pyng "expressing concern" for colleagues may not have involved any pecuniary considerations. But Article 17 of the "Legislative Practices Act" expressly prohibits "lobbying in ongoing criminal justice cases." Is this really nothing? Today's civil society is a public embarrassment. It is a case of "Long live influence peddling!"

How will these months of political turmoil be resolved? Influence peddling touched off a political struggle. Will the public pretend it was no big deal and sweep the entire affair under the rug? If so, what hope for the rule of law is there? Perhaps legislators cannot be counted on to uphold justice. But the public on Taiwan, and all who care about the rule of law, must make every effort to pass laws against the "obstruction of justice." The culture of "guanxi" must be elminated. This is a matter of right and wrong. This is a matter of the rule of law. Young people are about to become members of society. Will that society be dirty or clean? Can they expect justice? This is where the answer lies.

民意能否催生「妨礙司法公正」的立法？
【聯合報╱社論】
2013.10.11 03:41 am

語言會影響認知，認知則影響判斷。這次王柯的司法關說事件之所以衍生諸多紛擾，原因就在社會上許多人將「關說」籠統視同「關心」，而法律上對關說的規範也嫌不足，也因而立委關說司法竟出現「有明文禁止」卻「無罰則規定」的缺口。此一空窗景象，亟待後續的立法補強，才能防堵政治人物關說司法的惡行繼續肆虐。

一般人以為的關說，多泛指「請託」或「說情」（intercede）。但在涉及公務行為時，可能影響到政策執行或相關當事人利益的關說，通常叫做「遊說」（lobby）；若是牽涉司法案件，關說行為則可能衍生「妨礙司法公正」（obstruction of justice）或「不當運用影響力」（influence peddling）兩種罪行。在西方法治國家，不同性質的「關說」行為均受到不同法令的規範，定義也很明確；但在台灣，由於詞義的籠統，許多人卻以為「差不多」。

因此，在監聽案沸騰、而關說案幾遭遺忘之際，海外看此事卻有不同觀點。香港作家馬家輝說，「國會議長打電話向法務部長遊說官司，假如屬實，根據香港的普通法是極嚴重的『妨礙司法公正』的罪行」。台灣媒體駐美的記者也說，根據美國法律，這個案子裡至少有兩種犯行，一是「不當運用影響力」；更嚴重則是「妨礙司法」，可能要坐牢。

馬家輝說他很疑惑，不僅因為「關說行為在台灣竟不受法律規管」，更在於至今未見顯著的聲音「要求立法規管關說行為」。香港人若進一步知悉，此案在台灣紛擾的重點之一竟糾纏於「人情義理」之說，且馬英九形象受傷於「無情無義」的指責，幾難以彌補他對是非的堅持，則應該會更感奇怪，對台灣民主的羨慕恐怕也變得五味雜陳了吧。

華人社會當中，香港受英國建制法治精神的影響，至今的處境被描述為「無民主，有法治」。台灣以民主自豪，但這次的馬王事件顯示，以國際標準來看恐怕是「有民主，無法治」；或是說，法律人出身的總統想維持司法秩序，卻難以著力。王金平辯解關說行為是「關心」，相當比例的民眾接受這種說法；就如民意代表若被指關說，幾無二致地辯稱「選民服務」，一副理所當然的氣味。關說文化之根深柢固，難道真的無法可解？

西方學者評論儒家文化影響亞洲新興國家發展，常指「裙帶關係」是妨礙政治清廉、企業現代化的關鍵因素。但台灣就算民間生活展現「人情」，至少在行使公權力的領域裡，不應容忍特權人士妨礙司法公正，否則有何資格號稱民主法治？監督政府依法行政的民間團體，有何資格號稱「公民社會」？

現實裡有法治進步，卻也仍有漏洞處處的例子。基隆市長張榮通為酒駕關說，在警局拍桌罵人，不但遭「妨礙公務」罪名起訴，監察院彈劾未通過也引起社會譁然。歷年來多少交通罰單遭民代關說或警員銷單，已有越來越多案例以圖利、貪汙、瀆職等罪名起訴。最近中油總經理的人事案，有媒體報導指涉當事人找立委「喬事情」，引起經濟部長不滿而火速換人，有輿論還因此大誇經濟部長鐵腕，認為唯有如此才能杜絕關說文化。而在林益世涉貪案中，索賄以「政治獻金」掩護當然法所不容，但最震驚社會觀感的部分，尤在於黑手介入國營事業合約，及其宣稱「國庫的章是我在管的」這兩部分，活生生便是國外法律所稱「販賣影響力」的現形，這就是「特權關說」四字，寧有他解？

其實，再怎麼矯飾國人習以為常的「人情」因素，在執行公權力時「妨礙公務」、「妨礙司法公正」之間，並非一無分際。王金平院長「關心」同僚縱無金錢對價關係，但「立法委員行為法」十七條明訂「不得對進行中之司法案件進行遊說」，難道是假？今之公民社會，能大言不慚說「關說萬歲」嗎？

不論連月的政潮要如何紓解，對這個引爆政爭的關說案，全民若以假裝若無其事收場，台灣法治還有什麼希望可言？就算不能再指望立委諸公，台灣民意和所有關心法治前途的人都必須盡一切努力催生「妨礙司法公正」的立法，將關說文化徹底斷根。此事關乎人心是非，也關乎法治尺度，年輕人所謂「進入社會」之後會感受到汙濁或清明的環境氣息，對「公平」二字會有樂觀或悲觀的期待，答案亦在其中！