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ANALYSIS: Experts critical of Ma's case against Hou

Prosecutor Hou Kuan-jen is pictured on Feb. 13, 2007. PHOTO: LIAO CHEN-HUI, TAIPEI TIMES

President Ma Ying-jeou (馬英九) raised eyebrows recently when it was revealed that his lawyer had filed a letter of committal for trial to the Taipei District Court with regard to a forgery lawsuit Ma filed against Prosecutor Hou Kuan-jen (侯寬仁) in January last year.

Hou was one of the prosecutors probing Ma’s handling of his special allowance funds when Ma was Taipei mayor, minister of justice, vice chairman of the Mainland Affairs Council and other posts.

Ma accused Hou of inaccurately documenting his questioning of Wu Li-ju (吳麗洳), a Taipei City Government treasurer, about how Ma used his special mayoral fund.

‘BIAS’

Last year Ma asked the court to remove three prosecutors from his cases, citing “bias,” but State Public Prosecutor-General Chen Tsung-ming (陳聰明) rejected the request.

The Presidential Office defended Ma’s decision to go after Hou, arguing that the move was not out of personal interest but to serve as an example to others.

Minister of Justice Wang Ching-feng (王清峰) said she respected the president’s right to do so.

Former vice president Annette Lu (呂秀蓮) said Hou might deserve scrutiny, but he alone must not be targeted.

Lu is also under investigation for her use of the special allowance fund during her stint as Taoyuan County commissioner. Lu urged Ma to help all those embroiled in cases involving the discretionary fund, which she described as a “historic glitch.”

Former premier Frank Hsieh (謝長廷) criticized Ma for sabotaging the constitutional system, saying Ma should step down and give up his presidential immunity before filing the appeal.

Judicial Reform Foundation executive director Kao Yung-cheng (高涌誠) said that he did not see how Ma would benefit from the lawsuit or how, in Ma’s word, his decision would serve the public interest.

Kao said he did not blame Ma’s legal advisers for making such a suggestion, but Ma — a law graduate and seasoned politician — did not seem to have the political wisdom to make the best decision.

It would be a lose-lose situation for Ma, Kao said, because the public would doubt the impartiality of the court if Ma wins, and Ma would put himself in an awkward position if he loses.

Statistics show that the odds of Ma winning the case are one in a thousand, Kao said, adding that he was “99 percent sure the court would turn down Ma’s request.”

Kao said legally Ma had the right to go after Hou as a civilian, but the question was whether it was necessary for the president to desert administrative means and seek justice in court.

As prosecutors are civil servants, Kao said Ma could have the justice minister or state public prosecutor-general mete out punishment had Hou done anything wrong.

Ma could also make efforts to improve the evaluation system of prosecutors, strengthen their exit mechanism or ask the government watchdog, the Control Yuan, to step in.

With its legislative majority, Kao said Ma could also ask the Chinese Nationalist Party (KMT) to amend the laws and make the system better rather than seeking personal justice at the expense of others.

UNCONSTITUTIONAL

Kao said the system of committal for trial was problematic and flawed, with some criminal litigation experts considering it unconstitutional.

While the prosecutor, in this case Hou, was cleared of the forgery charges by the district court and high court, the accused, in this case Ma, requested another court to decide the propriety of the rulings of the district and high courts.

“It is like having the player be the umpire,” he said. “I don’t know how the president’s appeal would help improve the judiciary.”

Chen Yen-hui (陳延輝), a professor at National Taiwan Normal University’s Graduate Institute of Political Science, said Ma could have the Ministry of Justice or state public prosecutor-general punish Hou had he forged the document in question, adding that Ma would not have any problem seeing Hou dismissed if Ma’s claim proved true.

“But I find Ma’s decision very strange,” Chen said. “I thought the president’s job was to deal with daily state affairs, but it seems he is more concerned about how to make all prosecutors do what he wants.”

By going after Hou, Chen said Ma was sending out a message to other prosecutors that he cannot be touched, or they would end up like Hou.

If Ma was serious about judicial reform, Chen said he could hire someone he trusts to do the job, but what he was doing now seemed to be “killing the chicken to scare the monkeys.”

Huang Chii-chen (黃啟禎), a law professor at Tunghai University, said if Ma meant what he said by serving the public interest, he should revamp the system so more people would benefit from it.

Ma’s move might draw much media attention, but it also intimidated the judiciary, Huang said.

While Ma has said he wanted to see prosecutors record the questioning process more accurately, Huang said he had not seen Ma present any concrete measure to achieve this goal.

“His argument makes sense, but between coming after a prosecutor and amending the law, it is more appropriate for the president to choose the latter,” he said.

“There shouldn’t be any problem for the KMT to revise any law because it enjoys a majority in the legislature,” he said.

Lin Ming-hsin (林明昕), a law professor at National Taiwan University, said that from the legal viewpoint, the president was entitled to sue anyone, and it was his right to justify such an action.

JUDGMENT

“For the president, he must make the best political judgment possible,” he said.

From the non-legal point of view, Lin said he did not see any meaning to Ma’s move except for political considerations.

Lin said that he suspected it was a scheme aimed at using his old litigation to revitalize public interest in the legal case against former president Chen Shui-bian (陳水扁).
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