Before the court heard oral arguments regarding the case of leaked classified information involving former president Ma Ying-jeou (馬英九), I published an article in the Chinese-language Liberty Times (the Taipei Times’ sister newspaper) discussing Ma’s attempt to plead not guilty on the grounds that he had “special presidential executive powers” that absolved him of the offense.
The article pointed out that despite this fallacious argument, which is based on a broad assumption about the Constitution, the court could still acquit him. Now that Ma has indeed been found not guilty, the validity of his argument should be examined more thoroughly.
The indictment document issued by the Taipei District Prosecutors’ Office contains details about the political feud between Ma and then-legislative speaker Wang Jin-pyng (王金平) that erupted in September 2013, as proof that Ma had a possible motivation and purpose for abetting the leak of classified information about Wang, who was under investigation at the time for alleged improper use of influence.
However, the political feud alone is not evidence that Ma abetted the leak. Moreover, the motivation and purpose behind an offense cannot be used to convict a defendant. These factors should only be considered when the court is determining the penalty to be meted out, as stipulated by Article 57, Paragraph 1 of the Criminal Code.
The court was right to reject the prosecutors’ assumptions about Ma’s motivations. However, the court made the same mistake when it chose to believe that Ma would abide by the Constitution and honor his status as a former president.
This was an assumption that was clearly based on the judge’s own opinion.
According to the Criminal Code’s definition of abetting a leak of classified information, the abettor must instruct or encourage the leak of specific data.
Ma asked then-prosecutor-general Huang Shih-ming (黃世銘) to report to then-premier Jiang Yi-huah (江宜樺), but there is not enough evidence to prove that he instructed Huang to leak any classified information, as the court has pointed out.
This made convicting Ma difficult. Nevertheless, that Ma made Huang report to Jiang twice, apparently in an attempt to clarify something about the influence peddling case against Wang, creates room for arguing that he did abet the leaking of classified information. If there is to be an appeal, the prosecutors are likely to focus on this area.
The most controversial part is whether Ma, as president, was allowed to personally explain to Jiang and then-Presidential Office spokesman Lo Chih-chiang (羅智強) Wang’s involvement in the influence peddling case.
The Taipei District Court maintained that any case handled by prosecutors that has not yet been closed — whether an administrative or a criminal case — should not be disclosed. Ma’s actions should therefore be considered as having deliberately leaked classified information.
However, the court concluded that the Constitution grants the president “special presidential executive powers” to conciliate differences between the five government branches in a dispute, and that these powers absolve him of any wrongdoing.
A question that must be asked is why a simple case that involves influence peddling should be considered capable of causing a dispute among the different branches of government. Perhaps prosecutors and judges should all ponder Article 80 of the Constitution, which stipulates that judges shall be above partisanship, and hold trials independently and in accordance with the law.
Too much concern and speculation about politics is not a good thing.
Wu Ching-chin is an associate professor in Aletheia University’s law department.
Translated by Tu Yu-an
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