In its first ruling on a lawsuit filed by Democratic Progressive Party Legislator Ker Chien-ming (柯建銘), the Taipei District Court found former president Ma Ying-jeou (馬英九) not guilty of libel and incitement to disclose classified information.
The reason the court gave for the ruling was that then-prosecutor-general Huang Shih-ming’s (黃世銘) report to Ma in his presidential residence was the same as his first one, and Ma therefore cannot be considered to have incited the disclosure of classified information. Does that reasoning make sense?
Ker pressed charges against Ma in 2013 following Ma’s political dispute with then-legislative speaker Wang Jin-pyng (王金平). The case, which includes Ma’s alleged incitement to disclose classified information on Sept. 1 and alleged libel on Sept. 11, 2013, was handled by the Taipei District Court. Other matters, such as Ma’s request that Huang report to then-premier Jiang Yi-huah (江宜樺), were handled as a separate case by the prosecutors, who pressed charges against Ma in the middle of last month.
The handling of the charges against Ma was divided between two courts in the same courthouse. Not only does this waste court resources, it also means that the courts might issue different decisions or verdicts in two similar or even identical cases.
For incitement to disclose classified information to be established by a private prosecution, it must be demonstrated that it was intentional and that it included concrete instructions to commit the offense. Because the plaintiff only provided 1 minute and 28 seconds of communication records, which did not include conversational content, it is quite difficult to determine that concrete instructions were given. That the law stipulates no mandatory requirements on behalf of the plaintiff in private prosecutions makes it very difficult for the court to gather evidence.
In addition, Article 132 of the Criminal Code does not stipulate punishments for passively receiving information, so although Ma summoned Huang to his residence a second time, the court reasoned that there was little difference from the information disclosed the first time. Since Ma was already familiar with the information, the court said the second report did not include disclosure of classified information and therefore incitement to disclose classified information could not be established.
That decision was different to the verdict reached by the Taiwan High Court in the case against Huang, which raises the suspicion that the verdicts were influenced by who the defendant was. It also raises questions over whether the reasoning that led to the court’s not guilty verdict and its view that there was only a suspicion of an offense is applied across the board or if it is restricted to this particular case.
The reasoning that previously disclosed classified information is no longer classified is only valid if the same classified information is disclosed to the same person. That being the case, when Ma instructed Huang to report to Jiang, that could still be considered an offense. The problem is that this aspect is to be considered by another court, and based on the principle that the court only addresses issues that are part of the lawsuit, it means that the private prosecution is limited in what it can address.
This shows that dividing a case between several courts can cause a defendants’ liability to be watered down and perhaps even vanish completely, causing different courts to issue diverging verdicts. This could be yet another blow to a legal system that is already losing credibility.
Wu Ching-chin is chair of Aletheia University’s Department of Law.
Translated by Tu Yu-an and Perry Svensson
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