Tue, Aug 21, 2007 page8

• Was the verdict in Ma's case decided long ago?

  • By Allen Houng 洪裕宏
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  The written verdict in Chinese Nationalist Party (KMT) presidential candidate Ma Ying-jeou's (馬英九) trial on corruption charges is full of self-contradictions. If one reads between the lines, it reveals just how much the three judges love Ma. If you're willing to spend three hours reading through the judgment in detail, you can certainly feel that the judges have diligently defended Ma and searched for reasons not to find him guilty.

  Since the reasons for the innocent verdict are both conflicted and forced, Ma should face a second test in court. Even if he is found innocent in the second trial, the nation will have a hard time forgiving him for using his special mayoral allowance for his own personal use.

  Since the red-clad anti-President Chen Shui-bian (陳水扁) protesters disrupted the country last year, Ma has sworn to be at the forefront in the fight against corruption. Now, I'm afraid, that will all be seen as a farce. What's more, Ma's sparkling image has been completely destroyed. He will have a hard time avoiding character and honesty issues.

  The verdict gives two main reasons for Ma's innocence: That the special mayoral allowance is a substantial subsidy, and that Ma had no criminal intent. The principal charge under which prosecutor Hou Kuan-jen (侯寬仁) indicted Ma was "using the opportunities afforded by one's office to embezzle funds."

  One important criteria for establishing if Ma was guilty of embezzlement was whether he had criminal intent while attempting to defraud public funds. Of course, Ma's defense tried to demonstrate that this was not the case.

  Therefore, Ma unfortunately lied after he was indicted, forcefully saying that he had never said the allowance was public funds. Rather, he repeatedly emphasized that he had always seen it as part of his salary. If the judges accept that the allowance was not public funds, and believe Ma's assertion that it was a substantial subsidy, then the foundations constituting embezzlement vanish.

  The verdict described in great detail the history and evolution of the allowance. It even referred to public funds during the Song dynasty, as if the Taipei mayoral allowance originated from it. As it says, from 1952 until 1973, all the receipts had to be verified and written off. From 1973 until last year, only half of them had to be. Since the scandal broke this year, all the receipts must once again be inspected.

  The ruling explains at great length that the allowance is a substantial subsidy for government heads. But it also says that since 1952, no matter what the verification rules were, the allowance had to be spent on public causes. The allowance was not established as a subsidy for government heads, but to assist them with their public expenses. As to the manner of inspection of receipts, the only difference was how strictly the oversight was managed, not whether it took place.

  But a large portion of the verdict is dedicated to defending Ma. It is a one-sided exoneration, and a most strangely written judgment. It says that officials have the right to use half of the subsidy as they like without receipts. When officials produce the receipts, in fact they have already completed the verification process because the accounting and auditing departments won't determine the use of the funds out of respect for governmental authority.

  But to conform to the original intent of the allowance, officials should, in practice, use them for public expenses. Even worse, the verdict goes on to say that "the person who collects the allowance must occupy the position of mayor, but does not need to have already actually made the expenditure."

  It also says that Ma can pre-spend the allowance, but that it must be used for public affairs.

  Even more enraging is that the judges adopted Ma's "reservoir theory," advocating that with all the money donated out, it's impossible to differentiate the allowance from other sources.

  The judges have completely ignored that Ma has openly explained that the NT$70 million (US$2.11 million) in donations that he made were all election contributions and not related to his mayoral allowance. The donations from the allowance were the NT$10 million that Ma hurriedly donated only once the case had broken.

  The key point is that no matter how the verdict twists the case, and even if the allowance is a substantial subsidy, it should still be used only for public purposes and not privately. The verdict's attempt to defend Ma by saying that the allowance was his private property because it is a substantial subsidy does not pass the test of logic.

  I believe Hou should indict Ma under Article 4 of the Statute for the Punishment of Corruption (貪污治罪條例) which prohibits "stealing or criminally converting publicly used or publicly owned instruments or funds." The crime of criminal conversion is only concerned with behavior, not criminal intent.

  Now that I've written this, I suddenly feel very saddened. Could it be that Hou and judge Tsai Shou-hsun (蔡守訓) have been in cahoots with Ma's camp all along? Has this all been a performance? Could it be that Ma's verdict was decided six months ago?

  Allen Houng is convener of the Constitution Reform Alliance.

  Translated by Marc Langer
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