Monday, November 8, 2010

Judge Chou Chan-chun's Wrongheaded Reading of the Constitution

Judge Chou Chan-chun's Wrongheaded Reading of the Constitution
China Times editorial (Taipei, Taiwan, ROC)
A Translation
November 8, 2010

The Full Court, under Taipei District Court Judge Chou Chan-chun, has handed down its ruling in the Second Financial Reform scandal. Among the 21 defendants were former President Chen Shui-bian and his wife. Despite the fact that the former President and First Lady accepted hundreds of millions of NT in cash, both were found not guilty.

When the news came out, the public was outraged. Were it not for the former President and First Lady's official status, could they have coerced business tycoons into handing over hundreds of millions of dollars in cash? The cash allowed the tycoons to receive benefits they could not have otherwise. After all, who would part with such vast sums willingly? The former First Couple exploited the former President's status of head of state. During the former President's brief time in office, the couple accumulated a vast fortune no middle class family could have in an entire lifetime. The Special Investigation Unit indicted the First Couple, but has not been able to obtain a conviction. It angrily denounced the judges for being totally out of touch with public understanding of the crime. Naturally it intends to appeal.

The three judge panel consisted of Chou Chan-chun, Lin Po-hung, and Ho Chiao-mei. The verdict, which brimmed over with justifications, stated that, "Occasionally differences may arise between the decisions of judges and unverified common sense," but "justice cannot become a tool for manipulation by political forces." In other words, the judges claimed they had refused to try the case on the basis of political stance, common sense, or public sentiment. The judges claimed they would not be surprised if their verdict provoked an intense political and social backlash. Prosecutors intend to appeal and hope to have the verdict reversed. But they must argue their case on the basis of law, and not merely appeal to emotions.

The Taipei District Court handed down a "not guilty" verdict. The judges argued that the prosecution's indictment was rooted in the Punishment of Corruption Act, which prohibits civil servants from "using their official position" to obtain bribes or illicit advantages. The judges argued that the prosecution failed to indicate how the former President "used his official position" to intervene in the merger of financial holding companies, or prove that he accepted bribes. The verdict included a litany of constitutional interpretations. It listed the powers of the president as detailed in the Constitution. It noted that he may not directly issue orders to Executive Yuan personnel, meet with or telephone government heads, or order the Presidential Office Deputy Secretary-General to demand that ministry heads perform specific tasks. These actions all exceed the president's authority, the judges argued, but they do not amount to "use of one's official position." Therefore the judges concluded that the former President and First Lady were not guilty.

Such legal sophistry Ignores a fundamental legal concept. The purpose of constitutional provisions is to prevent abuses by a head of state. They are not intended to help heads of state abuse their authority or escape criminal prosecution. In order to protect the dignity of a head of state, the constitution grants the president immunity from criminal prosecution during his or her term of office. As the Grand Justices' constitutional interpretation of the district court's decision has made clear, former President Chen's immunity from criminal prosecution is not absolute. It is not something he enjoys for life. He remains subject to prosecution of criminal behavior committed during his term in office, once his term expires. The main purpose of the constitution is to limit the abuse of political power, not to provide a basis to acquit politicians for abuses of authority. The President or any other civil servant who commits a crime never "uses his or her official position" to commit a crime. He "abuses his or her official position" to commit a crime. The Punishment of Corruption Act punishes "using the opportunities provided by one's official position to extort property." It also punishes "accepting illicit benefits in an official capacity." This is why. It is irrelevant whether the payments received by the former President and First Lady constituted bribery. As long as they involve illicit advantages, it already constitutes corruption. Using the Presidential Office to dispatch Presidential Office personnel to intervene in financial reform, abuses the aura and status of "head of state" to accumulate vast wealth, in violation of the constitution. It is hardly a constitutional right such as the basic human right to politial asylum. A constitution is basically an inanimate object. Whether it can prevent the abuse of political power, depends upon whether the courts can interpret it properly. The key is correctly interpreting the intent of the constitution.

Why did these judges render a "not guilty" verdict in this case? Because they lacked an understanding of the constitution, and because a better understanding of the constitution is required. Also, the judges looked only at whether the former President's "used his official position." They ignored the fact that he "abused the opportunities provided by his official position" to engage in corruption. Was this the result of prosecutorial error during the indictment? Was this the result of the judges not seeing the forest for the trees? This must be cleared up during the second instance appeal.

The court's verdict naturally cannot be based on common sense or public sentiment. But the court must also answer the following question. The former President and First Lady promoted government financial reform. As a result they raked in vast sums of money. If that does not constitute corruption under the law, is that due to a deficiency in the law? Is that due to a blunder by prosecutors? Or is that due to political interference? The verdict was tens of thousands of words long. Yet it failed to explain the verdict, If the verdict has provoked a public backlash, the judges can hardly plead innocence.

The Taipei District Court's decision at least clarifies one long-standing misconception. Now at least we can say that the courts truly are not operated by the KMT.

2010-11-08 中國時報









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