Fri, May 10, 2013 - Page 8 News List

Judiciary inventive on corruption

By Lin Yu-hsiung 林鈺雄

In response to public anger about the sentence given to former Executive Yuan secretary-general Lin Yi-shih (林益世) for graft, the Taipei District Court collegiate bench called on people to set aside politics and focus instead on the law — but can the law be trusted?

The issue involves what is officially referred to as the action of an official in the discharge of their public duties and powers. In Taiwan, the convention had been to adhere strictly to the legal definition of public duties and powers, but during the Longtan corruption case involving former president Chen Shui-bian (陳水扁), the Supreme Court judges devised a new interpretation: “presumed actual influence.”

Since then, both legal concepts — the legal definition of public duties and powers and presumed actual influence — have been applied, depending on the nature of the individual case. In the graft case involving former deputy secretary-general to the Presidential Office Chen Che-nan (陳哲男), for example, the Supreme Court applied both principles, first the legal definition, followed by “actual influence,” before delivering a guilty verdict.

In the Lin case, the collegiate bench looked at the charge of corruption, to “safeguard the general public’s trust in the ability of civil servants to execute the duties of their public office properly” and employed the principle of presumed actual influence. The judges talked at length to establish their reasons, attempting to mitigate the flaws in the Supreme Court’s argument, and came to the surprise conclusion that Lin exercised no actual influence in his public duties and powers when he approached the Ministry of Economic Affairs and pressured state-owned China Steel Corp (CSC) and CHC Resource Corp — which the ministry itself had influence over — to do what he wished.

Based on this, the bench rejected the contention that Lin’s behavior constituted corruption and therefore the possibility of finding him guilty of money laundering or expropriation as a result. Not only did Lin evade a stiff sentence for corruption, the other people involved in the case were found not guilty of money laundering and the state had to return the confiscated money.

Let us set aside for the moment the theoretical flaws and actual misuse of the principle of presumed actual influence. Since the judges chose to apply the principle of the legal definition of public duties and powers — the one most favorable for the defendant — the legal definition of the public duties and powers of legislators were understood, as indeed they always have been, to include the powers of legislating, budgeting and monitoring, and oversight.

For example, former Chinese Nationalist Party (KMT) legislator Liao Fu-pen (廖福本) and former Democratic Progressive Party legislator Chiu Chui-chen (邱垂貞) were both found guilty of corruption and imprisoned for accepting bribes from the National Chinese Herbal Apothecary Association. During the court proceedings it was accepted that the basis for prosecution was that the defendants had taken the money while carrying out their public duties and powers as legislators.

Also, former KMT legislator Ho Chih-hui (何智輝) was found guilty of corruption for skimming money from a land development deal in Tongluo (銅鑼), Miaoli County, and for abusing his official powers as a legislator to pressure officials at the National Science Council.

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