Fri, May 10, 2013 - Page 8 News List

Judiciary inventive on corruption

By Lin Yu-hsiung 林鈺雄

It follows that the legal definition of public duties and powers for legislators include monitoring the activities and budgets of the economics ministry, which has influence over who is given senior positions within CSC and CHC, and on major policy decisions. Since the ruling in this case was based on the legal definition of public duties and powers, all of Lin’s actions should have been understood in terms of this definition.

Indeed, was it precisely because of Lin’s public duties and powers that he could do his “business” with Ti Yung Co owner Chen Chi-hsiang (陳啟祥), from whom he demanded bribes? Incredibly, the collegiate bench seemed to overlook Lin’s legislatorial duties and powers, blaming his behavior instead on his “thuggish tendencies.”

Next, the collegiate bench acknowledged that after Lin had received the bribe he “asked” the economics ministry to pass on a memo and told Minister of Economic Affairs Shih Yen-shiang (施顏祥) when the two met in the legislature to “pay heed” to it. However, the judges interpreted Shih’s failure to follow up on this as suggesting Lin was merely carrying out services to his constituents, and not carrying out his public duties and powers as a legislator.

If he was not acting as a legislator, why would he approach the minister about it at the legislature, or pass on the memo?

More importantly, whatever a public official chooses to do after receiving a bribe, whether the party doing the bribing was satisfied with the result or not, and whether the outcome was deemed successful, really has no bearing on the action of the official in the discharge of their public duties and powers. It certainly should not influence the conclusion as to whether corruption had taken place.

In the Chen Che-nan corruption case, the court did not even consider whether he had intervened having accepted the bribe, or even whether his intervention had been successful. Indeed, Liang Po-hsun (梁柏薰), who gave the bribe, only spoke out because it was unsuccessful. Nevertheless, the judges, having found that Chen’s actions irrefutably constituted corruption, did not then deny that they were performed in the discharge of his public duties and powers.

Whether Shih actively complied with Lin’s requests only touches upon the issue of whether Shih himself has a legal case to answer and it has nothing to do with the assessment of whether Lin accepted bribes. Perhaps someone can explain how Chen Che-nan could be found guilty of corruption for accepting a bribe and failing to follow through, when Lin did what he was bribed to do and yet got let off the hook.

Finally, looking back over the major corruption cases of the past few years, it does seem the courts have become a kind of creative workshop churning out new interpretations, the sheer inventiveness of each being more astounding than the last.

There was the “reservoir theory” espoused by President Ma Ying-jeou’s (馬英九) lawyers when he was charged with corruption over the use of discretionary funds before he came to power; then there was the concept of “presumed actual influence” that put Chen Shui-bian behind bars in the Longtan case; and now we have this new invention in the Lin case, the improved version of the notion of actual influence.

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