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Lee indictment is as
hollow as Ma
By Lin Cho-shui 林濁水
Following the indictment of former president Lee Teng-hui (李登輝) by the Supreme
Prosecutors’ Office Special Investigation Panel, Prosecutor-General Huang
Shyh-ming (黃世銘) said that of course Lee should be indicted, because the nation
cannot have a situation where only ordinary people are taken to court.
Make no mistake, it would be wrong to just charge ordinary people and let the
rich and powerful off the hook, so even former presidents should be indicted if
they are suspected of breaking the law, but it is equally important that this
standard not just apply to former presidents.
It was correct to indict former president Chen Shui-bian (陳水扁) for instances of
blatant corruption. It is true that the president’s state affairs fund is much
larger than a mayor’s special allowance fund and that Chen and his family
employed all sorts of means to misappropriate government money.
However, in both Chen’s case and the case of President Ma Ying-jeou’s (馬英九)
special allowance fund when he was mayor of Taipei, money was put to similar
use, namely gift-giving and wining and dining guests. Considering that these two
cases are almost identical in this respect, it is inconsistent that the charges
in Ma’s special allowance case were dropped, but Chen was indicted and convicted
in his state affairs fund case.
Indicting Lee for the diplomatic relations consolidation fund is even more
vindictive. Chen and Ma both put money in their own pockets, but Lee did not do
that with the consolidation fund. Since he did not pocket the money, why should
he be charged with embezzlement?
All the evidence presented in Lee’s indictment is identical to that set out in
the charges against former National Security Bureau (NSB) chief accountant Hsu
Ping-chiang (徐炳強). Hsu was found not guilty, so there is no good reason to
indict Lee on the same grounds.
Based on the principle of double jeopardy, the Code of Criminal Procedure
(刑事訴訟法) states that a case in which a final judgement has been reached can only
be retried if it meets certain conditions, such as the original evidence or
testimony was false, new evidence has been discovered or the prosecutors,
investigators or judges in the original case acted unlawfully or negligently. If
these conditions are not met, the case cannot be brought to trial again.
This regulation exists to prevent malicious prosecutors from heaping endless
litigation on a person. The principle of double jeopardy also preserves the
order and stability of the legal system by ensuring that the courts do not get
bogged down with frivolous cases.
The case against Lee is based on the same grounds as Hsu’s indictment. The
evidence is the same and the conduct of the original prosecution and trial has
not been found to have been in any way unlawful, so the case does not meet any
of the conditions required for a retrial.
Nevertheless, this old case is being tried again, only this time with Lee as the
defendant. Prosecutors have wilfully applied their own subjective views to the
case, tailored it as they see fit and even swapped things and people around to
intentionally confuse cause and effect.
Why was Hsu found not guilty?
The National Security Council (NSC) decided to set up an autonomous think tank
along the lines of the Rand Corp in the US, and the council’s secretary-general,
Ting Mao-shih (丁懋時), asked Lee to sign his approval. That is how Research
Division IV of the Taiwan Research Institute was established. Evidently there
was no embezzlement involved, hence the not-guilty verdict.
However, the prosecutors’ office in Lee’s indictment starts off by saying that
it was former Chinese Nationalist Party (KMT) financier Liu Tai-ying (劉泰英) who
reported to Lee and asked for his approval, following the example of Japan’s
Nomura Research Institute. It alleges that the NSC only decided to set up an
autonomous think tank after the consolidation fund case came to light, allowing
Lee, who “knew that he had broken the law,” to “absolve himself.”
Although Lee started working in an office in the Taiwan Research Institute after
he stepped down as president, he paid rent. The indictment omits this fact,
while working on the assumption that the institute was set up so that Lee could
use it after he stepped down.
From the point of view of criminal law, the consolidation fund case concluded
with a not-guilty verdict, but the court did identify serious administrative
irregularities in the way the fund was handled, such as the fact that no
invoices were filled out for expenditure as applications for reimbursement were
submitted orally.
Unfortunately, this kind of irregularity is commonplace in intelligence work,
which often involves doing things for the sake of national security that are
illegal under the Criminal Code. That is why the US used to have a rule that
heads of intelligence agencies could act beyond the bounds of existing laws when
directing intelligence duties. The National Intelligence Services Act (國家情報工作法)
also offers immunity from prosecution for certain intelligence activities, and
many of its articles are ambiguous.
The National Intelligence Services Act became law relatively recently, in 2003,
prior to which the government’s intelligence activities were often conducted as
leaders saw fit, without legal regulation.
During the presidencies of Chiang Kai-shek (蔣介石) and Chiang Ching-kuo (蔣經國),
intelligence activities were not subject to normal budget regulations, so
considerable sums of money earmarked for intelligence purposes did not have to
be paid into the national treasury.
This money was in effect a private slush fund and that is where the diplomatic
relations consolidation fund originated. Lee did not approve of the way his
predecessors handled this money, so when he became president he made it an
official fund. When Chen took over from Lee, he thought that the way Lee had
handled the money was still incorrect, and this issue caused strife between the
two.
After the case of irregularities involving Liu Kuan-chun (劉冠軍), who was chief of
the bursary section in the NSB’s General Service Office, came to light,
then-bureau director-general Yin Tsung-wen (殷宗文) and Hsu asked Lee to sign
invoices to fend off media accusations of unlawful spending, but Lee refused.
During Hsu’s trial, the judges discovered that applications for expenditure
reimbursements for intelligence purposes were also made orally. The
consolidation fund was not an isolated case in this respect as the practice was
widespread in relation to covert operations. This was another reason why Hsu was
acquitted. Conversely, the prosecutors’ office now has a different
interpretation of Yin’s handling of the affair, taking the view that Lee knew he
had broken the law and was trying to cover his tracks.
So what is the crime that Lee is supposed to have known he committed? Since the
establishment of the Taiwan Research Institute was a matter of policy, the
institute should not have to pay back the funds, despite the irregularities that
have come to light (the money embezzled by Liu is another matter).
However, the result of the strife between Lee and Chen was that Chen canceled
the appointment of the Taiwan Research Institute and that is why the institute
finally had to return the money. The indictment really is full of absurdities.
It would not be acceptable if prosecutors only brought charges against ordinary
people and let the rich and powerful go, but now that alarm bells are ringing
over Ma’s prospects for re-election as president, and with Lee calling on voters
to dump Ma it is apparently alright for prosecutors to ignore the letter and
spirit of the Code of Criminal Procedure by transplanting the Hsu case to Lee.
If even a former president can be treated in such a malicious manner, what legal
protections are there for the rest of us?
Lin Cho-shui is a former Democratic Progressive Party legislator.
TRANSLATED BY JULIAN CLEGG
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