Judiciary should amend injustice

By Hsu Tze-tien 許澤天  / 

Thu, Jun 13, 2013 - Page 8

Late on May 31, the legislature rushed through an amendment to the Accounting Act (會計法) supposed to decriminalize previously illegal activities such as elected officials spending public funds in hostess bars and university professors submitting false receipts for academic projects.

Rarely has justice been so rudely abused as it has throughout this sorry affair.

If any law needs to be amended it is the Anti-Corruption Act (貪污治罪條例), an awful piece of legislation that should be scrapped entirely — the sooner, the better.

Under the act, a public servant can be handed a sentence of 10 years to life just for stealing or misappropriating public funds or publicly owned facilities, and a minimum of seven years for making a false claim.

Because of this law — an aberration of the principle of proportionality — who knows how many public servants have been taken to court or sent to prison for a small indiscretion, how many families have been broken up as a result, and how many serious repercussions this has had on society?

Judges are forced to exercise restraint when crimes of this nature come before them, so conviction rates in corruption cases are relatively low: There is good reason that Article 59 of the Criminal Code — the punishment reduction clause — is being so liberally applied.

The nation’s esteemed legislators think of little more than looking after their own and after those to whom their fortunes are tied.

A few years ago, not only did they decriminialize abuse of the “special fee” expense account given to government department heads, but those who did abuse it no longer had any administrative or civil liability.

With the most recent amendment, the scope of exemption could be extended to all elected representatives, including legislators, a measure that is being endorsed by the significant amount of academics who are also facing prosecution for misusing receipts to fraudulently claim reimbursements.

It is no wonder that National Taiwan University Hospital physician Ko Wen-je (柯文哲) has said that he does not know whether he ought to be thanking jailed former Non-Partisan Solidarity Union legislator Yen Ching-piao (顏清標) — who stands to be freed if the amendment is promulgated — or whether Yen should be thanking him.

It is not only the dreadful Anti-Corruption Act that has brought this upon academics, the judiciary is complicit too.

Earlier this year, the Supreme Court handed down a non-binding interpretation saying that when university professors perform procurement responsibilities for science projects according to the Basic Act of Science and Technology (科學技術基本法), the Government Procurement Act (政府採購法) does not apply to them and their procurement cannot be regarded as “an action of an official in the discharge of their public duties and powers.”

As such, they do not have the status of “authorized official” and consequently cannot be prosecuted for corruption in that capacity, according to the interpretation.

In response to an outcry by criminologists over this interpretation, the Supreme Court in late March offered a revised version that was deemed more reasonable as it allowed professors to be prosecuted.

After the revised interpretation was given, it was at first considered appropriate for prosecutors in such cases to apply for suspended prosecution, or for the crime to be treated as a minor offense, except for when the misappropriation of public funds for personal use was deemed particularly serious, in which case the prosecutors would, as before, ask the judge to convict and sentence the defendant accordingly.

Prosecutor-General Huang Shih-ming (黃世銘) initially said he would wait for the Supreme Court’s decision before announcing how the Ministry of Justice’s Investigation Bureau would proceed in these cases.

However, in an unexpected development — and in the apparent absence of consensus on the issue between the Supreme Court judges — Huang announced that the bureau would have to continue investigating “corruption” by professors.

The problem is that the interpretation was just the result of a debate between the two sides, albeit following an exhaustive review of the situation.

Since it was not formalized in writing it cannot replace the earlier interpretation, for all its flaws.

This is especially frustrating because a Supreme Court spokesperson has confirmed that this interpretation constrained only the lower courts and did not represent a consensus in the Supreme Court, which makes one wonder why there should be a Supreme Court at all.

This piece of legislation will likely have many serious repercussions, the most grievous of all being the damage done to the public’s sense of justice served.

It seems that people are no longer equal in the eyes of the law: All one need do is get one’s foot in the door of the social elite and one can commit crimes with impunity and have tailor-made legislation passed at will to get oneself out of trouble.

Is a law in which one can be absolved from the responsibility of observing it worthy of being called a law?

Hsu Tze-tien is an associate professor of law at National Cheng Kung University.

Translated by Paul Cooper