A number of allegations have been made against Democratic Progressive Party (DPP) Chairperson Tsai Ing-wen (蔡英文) concerning abuse of power and ignoring a clear conflict of interest in her involvement with Yu Chang Biologics Co.
Regardless of whether the investment in Yu Chang, now known as TaiMed Biologics Inc, was questionable, at a time when everyone is talking about ethics, it is important that we do not allow ethical demands to override all else.
In the past, less emphasis was placed on ethics in public administration. As a result, it was important to push aggressively for the implementation of and adherence to ethical standards in the civil service.
However, many of the laws and ethical requirements related to public affairs and government posts cannot be dealt with as absolutes to be applied without trying to understand the underlying intent. Instead, such laws and ethical requirements must be interpreted using common sense.
For example, not long ago, a retired grand justice was criticized for attending a conference on judicial reform held by President Ma Ying-jeou (馬英九) and his vice presidential candidate, Premier Wu Den-yih (吳敦義).
Taipei District Court Judge Lin Meng-huang (林孟皇) — nicknamed “the conscience of the judiciary” — who I greatly respect, also believed that the retired grand justice breached judicial neutrality by attending the conference.
However, while I believe that investigations based on ideological concerns and judicial partisanship are reprehensible, I also think that as long as judicial impartiality is not undermined, ethical standards for judges must not be pushed to the point where they infringe on the rights a judge should reasonably have.
In another example, a candidate in a previous election who had pledged to institute subsidies for Aboriginal chieftains if elected was taken to court by prosecutors for entering into a contract or other -inappropriate beneficial relationship with people who have the right to vote. The prosecutors even went so far as to cite certain clauses from US law to support their argument.
When a friend asked me how this kind of situation would be interpreted in US law, I said that the lack of common sense in their literal interpretation was not only laughable, it also placed restrictions on political language by turning all campaign rhetoric, whether it is about tax reductions, road construction or national pensions, into some form of “contract” aimed at “certain” individuals.
Ethical norms must not be allowed to override all else because it is often impossible to apply abstract norms to real-life situations.
Abstract concepts must be removed from their context and thus cannot be used to reflect the context of everything that happens in the real world. That of course means that they are also unable to deal with the many exceptions that are an integral part of everyday life.
In other words, if we review all the demands that Tsai should have avoided any possible conflict of interest in relation to the Yu Chang affair, it becomes clear that abstract regulations are useless in helping us discern whether she actively created the opportunity to become chairperson of the company or was invited and encouraged to accept the post by investors.
In certain situations, principles regarding conflicts of interest can also be waived. For example, if a trial judge owns shares in a company, that might imply a conflict of interest.
However, it does not -necessarily mean that the judge must recuse himself or herself from cases involving the company in question because the other party or parties could agree that the principle of avoiding a conflict of interest is not applicable to this particular judge.
This is exactly why extending the application of regular abstract principles indefinitely is often both far-fetched and misses the target.
The investment in Yu Chang was a startup investment. Whether the Cabinet’s National Development Fund should have been used for such a purpose is a different matter entirely.
However, since it was a startup, speed and risk taking were major factors. The window of opportunity for a startup and the time period that a certain innovative technology holds a lead over other technologies is often calculated in terms of months and sometimes even weeks.
Once a competitor with a similar technology takes the lead, it is often impossible for the first company to catch up, even if it has better technology. To a certain extent this explains why the Cabinet approved the investment in Yu Chang within days of the initial contract being signed.
Although the investment undertaken by Tsai and her family took the form of stock ownership, I think it more closely resembled the kind of “bridge loan” provided to new technology companies with a shortage of funds.
By lending money, you have creditor rights, while shares can lose all of their value and are therefore much riskier.
To say that a venture capitalist earning NT$10 million (US$333,000) is making -“exorbitant profits” is clearly naive. Likewise, thinking that a startup is a sure way of making money is just outright nonsensical.
It is a miracle for one of 100 startups to become a successful business. Even in the US, only two out of every 100 newly founded companies manage to survive.
Of course, the profits a company makes do not make up for possible administrative failings or ethical problems.
However, if a startup is lucky enough to make a profit, it does not necessarily follow that someone will be waiting for just such a moment to benefit themselves.
Some of the worst evils caused by allowing ethical demands to override all else in the face of common sense include stripping civil servants of their legitimate rights, attacks on the efficiency of the civil service and increased opportunities for civil servants to take money they are not entitled to.
When honest civil servants try their best to remain honest and avoid the temptation of influence peddling, we can be sure that other unscrupulous individuals will jump at the opportunity while pretending that they are “just doing their job.”
The Chinese Communist Party refers to ideology removed from reality as “leftist infantilism” because the extreme left is not picky and politically irresponsible.
It is righteous and quick with its arguments, but in reality such an approach creates endless problems.
Moralism is another form of infantilism characterized by a preoccupation with actuality. When ethical concerns become absolute, things may seem honorable, but that is often limited to a superficial level, while deeper down they can have extremely negative effects.
I wholeheartedly support ethics in the public domain, but we must be able to identify and guard against those who use an extreme leftist facade to cover up their right-wing tendencies.
Thomas Huang is a lawyer.
Translated by Drew Cameron
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