The question of whether President Ma Ying-jeou (馬英九) will keep his promise and take a 50 percent pay cut for not realizing his “6-3-3” campaign pledge is once again becoming the focus of public attention.
Ma’s asset report indicates that he has not touched his salary and there seems to be a discrepancy between this and Premier Sean Chen saying that Ma has already donated more than half of his salary. As a result, lawyers have reported Ma to the Special Investigation Division (SID) for violating the law banning non-disclosure of assets. The problem is that this offense cannot even be pinned on a regular civil servant, much less so on the president.
According to Article 6-1 in the Anti-Corruption Act (貪污治罪條例), if prosecutors during an investigation of a civil servant involved in corruption, covering up for offenders of the Children and Juvenile Sexual Trade Control Statute (兒童及少年性交易防制條例), gambling, organized crime, human trafficking, drug offenses, smuggling, weapon and ammunition offenses or child pornography offenses, find irregularities in connection to that person’s assets, they can request an explanation. If such an explanation is not forthcoming, is suspected to be untrue or is found to be unreasonable, then they can request a prison term of up to five years for the offender.
Whether to request such an explanation is entirely up to the prosecutor. This makes it difficult to avoid willfulness in the handling of cases and invites differentiated treatment of defendants. In addition, the non-disclosure of assets offense can only be applied to someone who is already the focus of a prosecutorial investigation. This means that a civil servant will only be asked to provide an explanation if they are already being investigated for corruption or one of the other serious offenses already mentioned. If prosecutors ignore these other offenses and focus just on non-disclosure of assets, they would be letting the defendant off too lightly and failing to fulfill their duties.
There is a risk of this happening in the ongoing corruption case against former Cabinet secretary-general Lin Yi-shih (林益世). The assets discovered during the investigation far exceed the alleged bribes involved in the case, but because of the SID’s inability to clarify whether these assets constitute illegal income from other cases, prosecutors are rashly bringing charges based just on non-disclosure of assets. The heaviest penalty for this offense is significantly less than the penalty for taking bribes, which is at least seven years in prison. In this way offenders can avoid heavier penalties for other offenses, and even if prosecutors later find that assets constitute illegal income from other cases, the principle of“double jeopardy” is likely to prevent further charges.
Article 52 of the Republic of China Constitution states: “The President shall not, without having been recalled, or having been relieved of his functions, be liable to criminal prosecution unless he is charged with having committed an act of rebellion or treason.”
To recall a president he or she must have been in office for one year and as the Presidential Election and Recall Act (總統副總統選舉罷免法) does not explicitly exclude second-term presidents from this, there is currently no possibility of a recall. Even more difficult would be having the legislature vote in favor of impeachment followed by the Council of Grand Justices relieving the president of his or her duties.
Even if a president is involved in non-disclosure of assets, the terms of the Constitution mean that they can only be charged after having left office. So, regardless of what complaints and doubts there may be, there is currently nothing the public can do to remedy the situation.
Wu Ching-chin is an associate professor in the Department of Law at Aletheia University.
Translated by Perry Svensson