Analysis: Expense fund controversy just part of transitional justice, legal experts say

Amid concerns that judicial wrangling may escalate into a political storm, proposals have been made to resolve the controversies involving the president's "state affairs fund" and the Taipei mayoral special allowance through political means.

While President Chen Shui-bian (陳水扁), who has been accused of graft, forgery and perjury in connection with the handling of Chen's "state affairs fund," could not be charged because of his presidential immunity, first lady Wu Shu-jen (吳淑珍) was indicted earlier this month on a similar range of charges. Prosecutors have also questioned Chinese Nationalist Party (KMT) Chairman Ma Ying-jeou (馬英九) for the alleged mishandling of his special allowance fund.

In response to these events, Democratic Progressive Party (DPP) caucus whip Yeh Yi-chin (葉宜津) recently proposed a special law to grant amnesty to local chiefs found guilty of misusing their special allowance funds. She later withdrew her suggestion.

KMT and People First Party lawmakers have also advocated reforming the special allowance fund system through enactment of a special law to stipulate clear-cut regulations for the use of expense budgets by government officials.

With Judicial Yuan President Weng Yueh-Sheng (翁岳生), State Public Prosecutor-General Wu Ying-chao (吳英昭) and Taiwan High Court Prosecutor-General Hsieh Wen-ting (謝文定) also being accused of misusing their special expense funds, some prosecutors have proposed that the Prosecutor's Association call a meeting to solicit opinions on how to handle the matter with uniform standards.

Y.C. Kao (高湧誠), executive director of the Judicial Reform Foundation, said there was nothing wrong with Yeh's proposal and others like it, but was against the idea of resolving the problem with political means.

"You can't simply paint the sky black to hide the crows," he said. "The public cannot pretend that nothing happened because all local chiefs embezzled money from their special funds."

When the government pursues civilians suspected of tax evasion or forgery with considerable enthusiasm, it doesn't make sense for the judicial system to let corrupt local chiefs off the hook, Kao said.

Instead of resorting to political means, Kao said the judicial system must get to the bottom of the matter.

"I'm not saying that they should all be convicted or go to jail, but the people have the right to know why so many government officials dare to pocket public funds and how the wrongdoing could be corrected and the system improved," he said.

The judge could lessen the sentence if the defendant can produce "appropriate reasons" to justify their illegal activities, Kao said, but the defendant cannot be exempted from any criminal responsibility just because he or she claimed ignorance of the law.

Kao said he believed Chen and Ma were not corrupt politicians but it was wrong to pocket public funds.

Kao said he thought it was a bad idea to enact a special retrospective law to resolve the controversy, but if the legislature or politicians insisted on doing so, they would have to brace themselves for the political consequences.

Allen Houng (洪裕宏), an executive member of the Taipei Society, agreed with Kao that Chen and Ma might not be corrupt, but suggested it might be a good idea to lock up all of the nation's corrupt political elites -- this way new blood could be introduced to the political arena.

"Some people might have to pay the price for a poorly designed system but their sacrifice would benefit the country's democratic development," he said.

Describing the controversy caused by special allowance funds as an example of "justice in transition," Houng said the DPP administration should be held partially responsible for the political mayhem because of its failure to tackle these problems.

Houng said local chiefs' special allowance funds were part of a "weird" system developed during the KMT's reign.

As the country has moved beyond authoritarianism to democracy, a better-thought-out mechanism for the reimbursement of expenses and salaries must be established.

If the controversy of discretionary funds sparks debate over problems caused by transitional justice, Houng said he would not have any problem seeing local chiefs be given a presidential pardon for the crime they committed if such debate transcends partisan politics and political strife.

Prosecutors, however, should wait until Chen serves out his term of office before being prosecuted, Houng said, and he should not relinquish his criminal immunity to give testimony in court.