The Taipei District Court has issued a subpoena to former president Ma Ying-jeou (馬英九) to appear before it early next month, when it is to determine whether he is guilty of abetting former prosecutor-general Huang Shih-ming (黃世銘) in the leaking of confidential information.
As Huang has already been found guilty of this offense, it would seem difficult for Ma not to be found guilty of abetting Huang. However, is that really true?
In connection with the charges of leaking information that resulted from the “September strife” in September 2013, when Ma attempted to remove then-legislative speaker Wang Jin-pyng (王金平) from his post, Democratic Progressive Party caucus whip Ker Chien-ming (柯建銘) filed a private lawsuit against Ma.
However, since Ma enjoyed immunity as president, the case was delayed until now.
Under the Criminal Code, the Communication Security and Surveillance Act (通訊保障及監察法) or the Personal Information Protection Act (個人資料保護法), the penalty for leaking information is a jail term of three to five years.
In neither act is such a crime considered a felony, and a defendant that pleads guilty is likely to be sentenced to imprisonment of six months or less, which can be converted to a fine and sometimes even suspended.
However, given Ma’s personality and his former status as president, it is very unlikely that he would plead guilty.
Assuming that he will plead not guilty, he would have to provide an explanation to be exempt of responsibility.
One possibility is that the Special Investigation Division found that Wang had done nothing illegal in connection to accusations that he had been lobbying on behalf of Ker, and that any punishment was simply an administrative matter.
That could mean that Huang’s reports to Ma were not a breach of regulations stipulating that ongoing investigations should not be made public, in which case Huang’s actions were in line with the spirit of administrative integration.
However, as long as an investigation into a case has not been concluded, the question of whether or not the law has been breached remains undetermined.
That means that when Huang decided by himself that it was an administrative offense to provide a report, he violated the principle that ongoing investigations should not be made public and caused prosecutorial powers, which should be independent, to deteriorate into a tool used for political gains.
This is also why the court strongly reprimanded Huang for his actions. It would not be very helpful to Ma if he were to use the same reasoning in the lawsuit against him.
However, it seems Ma’s involvement is being treated as if his role consisted of acting behind the scenes.
According to the Criminal Code’s definition of abetment, the abettor must instigate a certain matter. If Ma only told Huang to go report to then-premier Jiang Yi-huah (江宜樺) without making any specific demands about the contents of the report, it might be difficult to make the case that he was abetting in the leaking of information.
However, Ma twice instructed Huang to report to Jiang in order to clarify the lobbying issue, so it might still be difficult to claim that there were no explicit instructions.
It seems there is little chance of showing that he is not guilty. However, it is worth noting that in connection with the special allowance fund case that occurred during Ma’s tenure as mayor of Taipei, the court declared that Ma was innocent because the law on the special allowance fund was unclear and that he was therefore unaware that he might have violated the law.
Based on this, Ma could perhaps avoid a guilty verdict by claiming, based on Article 16 of the Criminal Code, that he did not know that he might have violated a law, because of the code’s articles regulating the leaking of information and stipulating that ongoing investigations should not be made public.
However, this is perhaps not the best defense for someone with a doctorate in law, and it would be both unexpected and decidedly strange.
Wu Ching-chin is an associate professor and chair of Aletheia University’s law department.
Translated by Perry Svensson
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