Thursday, November 1, 2007

Selective Prosecution based on Political Affiliation?

Selective Prosecution based on Political Affiliation?
China Times editorial (Taipei, Taiwan, ROC)
A Translation
November 1, 2007

The Special Investigative Unit of the Prosecutor General's Office has decided not to indict former Chairman of the Judicial Yuan Weng Yueh-sheng for misuse of his Discretionary Fund Account. What standards do prosecutorial agencies apply when deciding whom they will prosecute? Once again this has attracted public interest. Every time prosecutors investigate a Discretionary Fund case, their credibility is dealt another blow. This is a serious problem that must be examined.

First we must examine the prosecutors' standards for deciding whether to prosecute. These standards were totally different in the Ma Ying-jeou case, Hsu Tien-tsai case, Frank Hsieh case, Su Tseng-chang case, and Weng Yueh-sheng case. Prosecutors' understanding of the nature of Discretionary Fund have varied widely. What's worse, so have their investigative techniques, which have ranged from indulgent to unrelenting. Objective observers are not convinced that the system works or that defendants have received justice.

Scrutinize the manner in which prosecutors approach their cases, and the double standards become glaringly apparent. Prosecutors refused to indict Hsu Tien-tsai on the assumption that the Discretionary Fund was a substantive subsidy. But this was the local court's judgment in the Ma Ying-jeou case. So why was Ma Ying-jeou indicted? Why weren't Frank Hsieh, Su Tseng-chang, and Weng Yueh-sheng indicted? None of them claimed their Discretionary Funds were substantive subsidies. For public prosecutors to hold different standards prior to local court judgments is understandable. But when local courts concurred with the decision of the Tainan Prosecutors Office not to indict Hsu Tien-tsai, the Special Investigative Unit of the Prosecutor General's Office suddenly adopted an entirely new legal position. The problem of prosecutorial double standards is so serious it needs no further comment.

Prosecutors' standards for deciding whether to prosecute differ not only with each other, they differ with court opinions. Even the same public prosecutor may apply different standards from one case to the next. Look at how relentlessly Hou Kuan-jen prosecuted the Ma Ying-jeou case. His attitude was "Never say die!" Look at the single-minded manner in which he picked away at any disbursements he did not recognize as public, and at unused funds, which he automatically regarded as intended for self-enrichment. He refused to interpret Ma Ying-jeou's charitable contributions as official expenses, and refused to adopt the "Big Reservoir Theory." Not only did he assume Ma Ying-jeou was committing fraud in order to enrich himself, he falsified court records to ensure Ma Ying-jeou's indictment. Contrast this with his indulgent demeanor when he chose not to indict Frank Hsieh and Su Tseng-chang, when he adopted the premise that "Human beings are basically good." He was an entirely different person. He assumed that disbursements requiring receipts were for official use. He interpreted Frank Hsieh's disbursement of funds to his friends as official expenses. The difference in the way Hou handled the two cases was like night and day. Chief Prosecutor Chu Chao-liang of the Tainan Prosecutor's Office prosecuted Hsu Tien-tsai. When the Special Investigative Unit began prosecuting Weng Yueh-sheng, suddenly Chu had an entirely different understanding of the law. Using receipts to account for disbursements was viewed as long-established convention. Once a receipt, along with original proof of purchase, had been submitted and approved, reimbursement was viewed as unnecessary. Nor was anyone who failed to use of the full amount required to return the balance. But if that was the case, why reject the legal opinion that the Discretionary Fund was a substantive subsidy? Why demand that personal disbursements be deducted from the approved total? Why gild the lily? How can the same public prosecutor, prosecuting the same Discretionary Fund cases, apply entirely different legal standards for different defendants? One really has to hand it to them.

What's behind these utterly inexplicable differences in the way identical cases are prosecuted? Is the prosecutorial community morally bankrupt? Are public prosecutors totally untrustworthy? Are prosecutors working hand in glove with the ruling party, targeting designated political figureswith the presidential election in mind? The Special Investigative Unit is investigating cases opened before the unit was established. If it wishes to be perceived as consistent, how can it turn a blind eye to the conduct of public prosecutors? If the Special Investigative Unit adopts standards at variance with legal precedents, won't it be accused of engaging in politically-motivated prosecutions? If the Special Investigative Unit turns a blind eye to public prosecutors who allow themselves to become political tools, who handle cases differently based on the political affiliation of the defendant, aren't they concerned about undermining public confidence in the neutrality of prosecutorial agencies?

The Discretionary Fund case is a long term joint effort. So said Su Tseng-chang, who has been exempted from prosecution. The Discretionary Fund case involves years of established procedure. Weng Yueh-sheng has been exempted from prosecution. Because Weng had already emptied out his Discretionary Fund, how his funds were used was considered no longer subject to investigation. This is how the prosecutor reasoned that an indictment against Weng was not required. Frank Hsieh may also be exempted from prosecution. Only Ma Ying-jeou, who truthfully declared his holdings, who did not withdraw funds from his account to spend or make donations, is being required to provide receipts accounting for his expenditures. One man is being forced to bear the entire burden of punishment meted out by the law. Isn't it obvious that if Ma Ying-jeou were an ordinary citizen and not a leading presidential candidate, he wouldn't be in his current pickle? As long as this suspicion remains, the credibility of prosecutorial agencies and the entire judicial system will remain in grave doubt and impossible to redeem.

How much longer must we endure Taiwan's vicious political culture?

中國時報  2007.11.01








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