Monday, November 15, 2010

Chou Chan-chun: Using Constitutional Pretexts to Set Criminals Free

Chou Chan-chun: Using Constitutional Pretexts to Set Criminals Free
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
November 15, 2010

The Supreme Court has handed down its rulings in the four Chen family corruption cases. It has essentially nullified the legal opinions offered by Chou Chan-chun in the Second Financial Reform scandal trial. The Taipei District Court Full Court, led by Chou Chan-chun found former President Chen not guilty. It cited legal sophistries about "presidential authority" and the "official duties of the president." Fortunately the Supreme Court knows the difference between right and wrong. It has reaffirmed the correct legal principles. It has put the legal system back on track, in accordance with the understanding of a majority of the nation's citizens.

Chou Chan-chun expended a great deal of ink writing his judgment. He wrote that the president's authority was constrained by the constitution and 16 amendments. He wrote that the majority of scholars and judges also feel that the president has exceeded his executive authority. From this he concluded that promoting the Second Financial Reform "program" was not within the president's legal authority. When Chen Shui-bian intervened, he exceeded his authority. Since his conduct was not part of his official duty, therefore the money he collected cannot be considered bribes.

Such a legal opinion misapplies a dispute pertaining to constitutionally mandated presidential authority to criminal law regulating the conduct of civil servants, in order to arrive at the fallacious conclusion that "The president was innocent of corruption." Put simply, whether the president should intervene in a particular area of executive power is one thing. It is a constitutional matter. Whether a president who has already exceeded his executive authority is also committing a crime, is something else altogether. It is a criminal matter. The two must not be conflated.

The ruling handed down by the Supreme Court restored the case to the realm of criminal law. It stated bluntly that "Article V, Paragraph One of the Punishment of Corruption Act stipulates that accepting money or gifts based on one's official position, constitutes a crime. This includes all sorts of considerations disguised as gifts and other benefits. The term "official duties" refers to what a civil servant should do or must do within the scope of his duties. As long as his conduct bears a relationship to the nature of his duties, and he wields substantial influence during the performance of those duties, then his conduct is defined as his duty." The Supreme Court specifically mentioned several points. It stated that if a civil servant wields substantial influence during the performance of his duties, then his conduct is defined as his duty. This dissolves the fog of confusion Chou Chan-chun attempted to generate between constitutionally mandated presidential authority and criminal law. In other words, according to the Supreme Court, the president's official duties provided him with substantial influence over the Second Financial Reform "program." He took advantage of that influence to collect bribes, and that constitutes corruption. These are established facts. Under these circumstances, one may not arrive at the ludicrous conclusion that the president was innocent of corruption.

Another aspect of the Supreme Court's judgment is worth noting. It increased Lee Chieh-mu's sentence to three years and six months, without the possibility of parole. The Chen family corruption case involves four parts. In the second instance they were found guilty. But their sentences were reduced to an unreasonable degree. The most extreme example is Lee Chieh-mu. He was the mastermind behind the Longtan Land Acquisition scandal. He shared his practical expertise in the administration of the Science Park. He found ways to profit illicitly. Companies going under would allow the government to pick up their debt. Lee helped Ah-Bian and Ah-Chen to profit from the opportunity. He acted as Chen's "stalking horse." Contrast this with his former image as a "scholar for democracy." One truly has no reason to sympathize with him. He was granted probation during the second instance trial. This newspaper pointed out that the judge clearly pulled his punches. His conduct was completely unacceptable.

The Supreme Court now says that the "Original decision did not find Lee Chieh-mu deserving of any sympathy for the crimes he committed. According to the text of the original decision, he showed no remorse. Yet in accordance with Article 59 of the Penal Code, his sentence was reduced. But Article 59 of the Penal Code stipulates that mitigation of punishment requires expressions of remorse over one's criminal conduct. It applies only to defendants for whom the lightest penalty is still too severe." Therefore the original sentence amounted to a commutation of the sentence. This was illegal, and a misapplication the law. Therefore the Supreme Court rendered its own decision in the matter. It ruled that Lee Chieh-mu must serve time.

Also, the State Affairs Fund case must be retried. It is being retried by the Supreme Court, but can only be retried based on the Second Instance ruling. The grounds given for retrying the State Affairs Fund scandal include all applicable laws, but also mention "the impact of findings of fact." The original decision explained away many of the Chen families improper expenses as part of the president's official duties. It failed to pursue them. It ignored the "Southern Front" and other fraudulent schemes. Clearly the Supreme Court considered this unacceptable.

The State Affairs Fund case involves the crime of embezzlement of public property, as specified in Article Four, Paragraph One, Line One, of the Punishment of Corruption Act. The heaviest penalty that can be imposed is life imprisonment. The original sentence failed to include huge sums of embezzled funds. That was the only reason for the lighter sentences. The retrial will take into account these sums. If the findings of fact are overturned, and the sums involved become larger, it is possible that Ah-Bian and Ah-Chen's sentences may be increased.

【聯合報╱社論】 2010.11.15








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