Tuesday, December 9, 2008

Take the Constitution Seriously, Assure An Appropriate Sentence

Take the Constitution Seriously, Assure An Appropriate Sentence
China Times editorial (Taipei, Taiwan, ROC)
A Translation
December 9, 2008

The Taipei District Court has sentenced former Bureau of Investigation Chief Yeh Sheng-mao to 10 years in prison, and deprived him of his political rights for five years. Prosecutors were investigating the Chen family's money-laundering operations. The Full Court discovered that between 2006 and 2008 Yeh leaked information about their investigations to Chen Shui-bian, on at least two occasions. Yeh's actions enabled Chen Shui-bian and his family to profit illegally from real estate acquisitions. Yeh was found guilty of abusing the authority of his office for private benefit, of revealing secrets, of concealing official documents, and of forgery. That is the reason for the harsh sentence. The Bureau of Investigation Chief has been given a harsh sentence for leaking information about an ongoing criminal investigation to the chief suspect -- none other than the president. This is a first in our history. The judgment is not yet final, but it has established a precedent for the rule of law.

On the surface, this case pertains exclusively to issues of criminal law. But behind it lie important issues of constitutional interpretation, providing considerable food for thought.

The Jersey Finance, Offshore and Trust Companies Information Centre provided Yeh Sheng-mao with information about Wu Ching-mao's secret account. The court found Yeh guilty of one count of leaking information about Wu's account to former president Chen Shui-bian. The year was 2006. Wu Shu-chen was suspected of fraud in the State Affairs Fund scandal. She would be indicted one month later. Anti-Corruption Center prosecutor Eric Chen was investigating Wu Shu-chen for fraudulently applying for State Affairs Funds. He had determined that the former president was an accomplice. The only reason the president was not named as a co-defendant was because the constitution granted him immunity from criminal prosecution while he was still in office.

Does anyone remember what happened next? On December 14, 2006, Democratic Progressive Party legislators, led by Ker Chien-ming, asked the Council of Grand Justices to make a constitutional interpretation. They wanted the president's immunity to be unconditional. They wanted him granted "immunity for life," as well as "immunity for wife," with assurances that neither would be prosecuted. On January 25, 2007 the Grand Justices rejected the legislators' request on the basis of procedural irregularities. That day, President Chen established a constitutional precedent. He personally wrote an appeal. He too asked the Grand Justices to grant him unconditional immunity from criminal prosecution. He too aske for "immunity for life," as weel as "immunity for wife." He too wanted the Grand Justices to use a constitutional interpretation to prevent the courts from trying Wu Shu-chen, or from gaining access to incriminating evidence within the Presidential Palace. One month earlier, Yeh informed Chen that his family's money-laundering operation was about to be exposed. Chen took advantage of the immunity provided by the Constitution. To avoid exposure and prosecution, to avoid being shackled and jailed, he adopted a humble posture and made an unprecedented presidential appeal for a constitutional interpretation. He knew its importance. He knew he could not afford to wait a single day.

In June 2007, the Grand Justices issued Constitutional Interpretation 627. They reaffirmed 1995 Constitutional Interpretation. They said the president's immunity from criminal prosecution was not absolute, was not for life, but was applicable only during his term of office. When former President Lee Teng-hui was in office, Democratic Progressive Party Legislator Liao Ta-lin asked the Grand Justices to shrink the scope of the president's immunity. They wanted the Grand Justices to allow the president to be prosecuted during his term. They wanted to be able to inititate criminal proceedings against an incumbent president for vote-buying while running for re-election. The Grand Justices ruled that a president was immune from criminal prosecution only during his or her term of office. Contrary to Democratic Progressive Party legislators' allegations, the president's immunity from criminal prosecution has never been reduced. The Grand Justices' position has been consistent throughout.

The Grand Justices affirmed that the president's immunity from criminal prosecution was limited, that it did not apply once he or she left office.
The Jersey Finance, Offshore and Trust Companies Information Centre and the Egmont Group provided information about the Chen family's money-laundering operations. Yeh Sheng-mao shared that information with Chen Shui-bian. The court found Yeh guilty of abusing the authority of his office for private benefit. A president totally exempt from criminal prosecution can engage in corruption, or even commit murder and arson, yet remain immune from prosecution after leaving office. Such conditions would make it impossible to prosecute a Bureau of Investigation Chief for illegally revealing secrets to the President.

When Democratic Progressive Party legislators were in the opposition, they proposed that the President's immunity from criminal prosecution be limited. But when the Democratic Progressive Party became the ruling party, DPP legislators proposed that the president's immunity from criminal prosecution be unlimited. Twice they demanded constitutional interpretations. But they demanded the exact opposite interpretation the second time as the first time. These political chameleons' ability to change their colors is mind-boggling. Bureau of Investigation Chief Yeh Sheng-mao tipped off former President Chen Shui-bian on December 5, 2006, On December 14, 2006, Democratic Progressive Party legislators submitted a petition demanding a constitutional interpretation. On January 25, 2007, the same day the DPP legislators' request was rejected, former President Chen filed an appeal. This shows the political nature of their practiced legal moves. Their situation was touch and go, yet their response was orderly and self-assured, befitting defense attorneys intimately familiar with the law.

Yeh Sheng-mao's conduct allowed former President Chen to take effective measures in a timely manner, and to use constitutional loopholes to evade the law. The Grand Justices interpreted the Constitution with great care. They refused to allow the Head of State to be above the law. If they had, the Taipei District Court would have been incapable of sentencing Bureau of Investigation Chief Ye Sheng-mao as he deserved. Constitutionalism and the rule of law made themselves felt in the court's ruling. They demonstrated their ability to check the ruling regime's abuse of power. They forced the ruling regime to eventually accept the law of the land. According to Article 48 of the Constitution, the President's Oath of Office, the president must "abide by the Constitution, fullfill the president's duties ... and not betray the trust of the people. If the president violates his or her trust, Only such provisions can constrain the abuse of power, and offer something other than empty promises.

中國時報  2008.12.09
認真對待憲法 才有葉盛茂重判

台北地方法院以五大罪狀,重判前調查局長葉盛茂十年有期徒刑,褫奪公權五年。合議庭認為,葉將扁家洗錢情資分別於九十五年間及九十七年間兩次向陳水扁報告 並為資料交付,圖利陳水扁家族獲取財產上不法利益,觸犯圖利罪,另並有洩密、隱匿公文及偽造文書等數罪並發,故處以重刑。調查局長因向總統報告總統家族洗 錢情資而遭重判,此為我國憲政史上首例。雖然尚未定讞,已開法治先河。


法院認定葉盛茂第一次向陳水扁前總統洩露澤西島金融情報中心提供的吳景茂帳戶資料,時間正在吳淑珍涉及詐領國務機費於九十五年間被起訴的一個月後。當時查 黑中心檢察官陳瑞仁追訴吳淑珍詐領國務機要費,認定陳前總統為共犯,只因憲法規定總統享有刑事豁免權,乃未將總統列為同案被告。

還記得當時發生了什麼政治效應嗎?民進黨的立委以柯建銘為首,於九十五年十二月十四日向大法官聲請解釋憲法,主張總統的刑事豁免權為絕對的、終生的豁免 權,而且可以澤蔭妻子,不受追訴。大法官於九十六年一月廿五日決定程序不合,不予受理。當日陳前總統即開憲法首例,親筆簽出聲請書,再度聲請大法官解釋總 統享有的刑事豁免權是絕對的、終生的,而且可以庇蔭妻子,希望大法官以憲法解釋阻止法院審判吳淑珍,或向總統府調閱相關資料。陳前總統一月之前已獲葉前局 長告知洗錢即將敗露,於是企圖乞靈於憲法提供絕對的刑事豁免保障,以免東窗事發,瑯璫入獄。於是他放下總統身段,簽出了過去總統從來不肯親簽的釋憲聲請 書。心知關係重大,一天也不耽擱。

接下來就是大法官在九十六年六月中做出憲法解釋(釋627),重申民國八十四年的憲法解釋,憲法上總統的刑事豁免,不是絕對的、終生的特權,而是只在還有 總統身分,任期尚未結束的時候,可由總統加以主張。總統的刑事豁免只是相對的,不是絕對的豁免。回顧前總統李登輝在位時,民進黨的立委廖大林聲請大法官縮 限解釋總統豁免權的範圍,允許檢方於總統在任期間,以刑事訴訟追究現任總統競選連任時賄選的行為。大法官當時即認定刑事豁免只於任期內有效,並未如民進黨 立委所請,縮限總統刑事豁免特權;可見大法官維持了前後一致的解釋態度。

正是因為大法官始終確認總統的刑事豁免權是相對的,卸任之後即不容復行主張,才會形成法院認定葉盛茂告知陳水扁澤西島及艾格蒙洗錢情資是圖利陳前總統家族 的有罪判決。試想:如果總統享有絕對的刑事豁免,在任時無論如何貪汙,乃至殺人放火,於卸任後也不受追訴,又哪有追究調查局長於總統任內向其報告任何情資 罪責的餘地。

民進黨立委在野時,主張總統豁免特權應該縮限,到了執政時卻主張總統豁免特權應該無限擴張,同樣是聲請憲法解釋,立場卻宛如政治變色龍,煞是可觀。而葉局 長於九十五年十二月五日向陳前總統通風報信,民進黨立委在九十五年十二月十四日遞出釋憲聲請;陳前總統自己則於立委聲請失敗之同日,亦即九十六年一月廿五 日應為重新聲請,可見政治性的司法動作如何嫻熟而訓練有素,形勢間不容髮,自保的行為也是有條不紊,毫不含糊,不愧為深諳法律門道的訟師。

這樣看來,葉盛茂的報告行為,還真有可能讓陳前總統及時採取有效措施,利用憲法解釋可能的空隙逃避法網制裁。要不是大法官在解釋憲法的時候,能夠認真對待 憲法,拒絕給予國家元首超乎法治的絕對地位,就不會有今天台北地方法院判處葉盛茂局長重罪的可能。憲政法治,也就能在法院的裁判之中,彰顯其控制統治者濫 用職務權力,使之終有接受國法制裁的機會。唯其如此,憲法第四十八號規定的總統誓詞:「余必遵守憲法,盡忠職務……無負國民付託。如違誓言,願受國家嚴厲 之制裁。」也才真正能夠具有莊嚴的拘束意義,不只是徒托空言而已!

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