Sun, Oct 22, 2017 - Page 6 News List

Assigning Ma’s case to two courts weakened it

By Wu Ching-chin 吳景欽

The appeal in Democratic Progressive Party (DPP) caucus whip Ker Chien-ming’s (柯建銘) private lawsuit against former president Ma Ying-jeou (馬英九) on charges of leaking classified information and wiretapping was on Oct. 10 rejected by the Taiwan High Court.

The decision to uphold the previous not-guilty verdict might have stemmed from the court’s subjective views, but another reason was that the case was divided between two courts.

The accusation that Ma had leaked state secrets exploded onto the scene in September 2013. Ker launched a private lawsuit against Ma for disclosing classified information on Sept. 1, and added alleged libel on Sept. 11. This came under the Taipei District Court’s jurisdiction.

Other matters, such as Ma’s request that former prosecutor-general Huang Shih-ming (黃世銘) make two reports to former premier Jiang Yi-huah (江宜樺), were handled in a separate lawsuit lodged with the Taipei District Prosecutors’ Office.

These closely connected allegations were clearly part of the same offense and should have been combined into a single suit.

According to the rule of competing jurisdiction set out in Article 8 of the Code of Criminal Procedure (刑事訴訟法), the court at which a case is first pending must try the case.

The Taipei District Prosecutors’ Office had combined other charges levied against Ma and transferred the case to a private court for trial.

However, it threw out the trial on the grounds that the facts of the cases were unrelated to each other, and the case was split into two different suits and tried at separate courts, making it more difficult to get at the truth.

Ker’s private lawsuit referenced Article 132 of the Criminal Code (刑法), which states that when state secrets relating to matters other than national defense are leaked by a public official, the leaker, rather than the recipient of the leaked information, should be prosecuted.

Since Huang initiated the report to Ma, Ma clearly was not guilty. This means that whether Huang provided further wiretapping and communication records when he was asked by Ma to visit him a second time is crucial to the question of whether Ma aided and abetted the disclosure of state secrets.

For prosecutors to prove that an offense occurred, there must be evidence of explicit instructions. However, the trial process revealed only 88 seconds of communication on the record, making it difficult for prosecutors to prove an intent to aid and abet the disclosure.

If Huang — when Ma asked him to visit a second time — delivered the same report as the first time, that already leaked information was no longer secret, and so no additional offense would have occurred.

If the two reports are essentially the same, but a connection cannot be established between them, it is not possible to evaluate Ma’s explanation to the premier and the Presidential Office secretary-general.

However, this event was handled by a different court, and based on the legal principle that a court can only try the charges in a lawsuit, the court could only judge Ma on the charges brought against him in the private suit.

This placed restrictions on the evidence that prosecutors could present, while Ma’s defense lawyers were able to easily rebut the prosecution’s case.

In this latest trial, the judges have at least upheld the twin legal principles of the presumption of innocence and evidence-based law.

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