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Judiciary inventive
on corruption
By Lin Yu-hsiung 林鈺雄
In response to public anger about the sentence given to former Executive Yuan
secretary-general Lin Yi-shih (林益世) for graft, the Taipei District Court
collegiate bench called on people to set aside politics and focus instead on the
law — but can the law be trusted?
The issue involves what is officially referred to as the action of an official
in the discharge of their public duties and powers. In Taiwan, the convention
had been to adhere strictly to the legal definition of public duties and powers,
but during the Longtan corruption case involving former president Chen Shui-bian
(陳水扁), the Supreme Court judges devised a new interpretation: “presumed actual
influence.”
Since then, both legal concepts — the legal definition of public duties and
powers and presumed actual influence — have been applied, depending on the
nature of the individual case. In the graft case involving former deputy
secretary-general to the Presidential Office Chen Che-nan (陳哲男), for example,
the Supreme Court applied both principles, first the legal definition, followed
by “actual influence,” before delivering a guilty verdict.
In the Lin case, the collegiate bench looked at the charge of corruption, to
“safeguard the general public’s trust in the ability of civil servants to
execute the duties of their public office properly” and employed the principle
of presumed actual influence. The judges talked at length to establish their
reasons, attempting to mitigate the flaws in the Supreme Court’s argument, and
came to the surprise conclusion that Lin exercised no actual influence in his
public duties and powers when he approached the Ministry of Economic Affairs and
pressured state-owned China Steel Corp (CSC) and CHC Resource Corp — which the
ministry itself had influence over — to do what he wished.
Based on this, the bench rejected the contention that Lin’s behavior constituted
corruption and therefore the possibility of finding him guilty of money
laundering or expropriation as a result. Not only did Lin evade a stiff sentence
for corruption, the other people involved in the case were found not guilty of
money laundering and the state had to return the confiscated money.
Let us set aside for the moment the theoretical flaws and actual misuse of the
principle of presumed actual influence. Since the judges chose to apply the
principle of the legal definition of public duties and powers — the one most
favorable for the defendant — the legal definition of the public duties and
powers of legislators were understood, as indeed they always have been, to
include the powers of legislating, budgeting and monitoring, and oversight.
For example, former Chinese Nationalist Party (KMT) legislator Liao Fu-pen (廖福本)
and former Democratic Progressive Party legislator Chiu Chui-chen (邱垂貞) were
both found guilty of corruption and imprisoned for accepting bribes from the
National Chinese Herbal Apothecary Association. During the court proceedings it
was accepted that the basis for prosecution was that the defendants had taken
the money while carrying out their public duties and powers as legislators.
Also, former KMT legislator Ho Chih-hui (何智輝) was found guilty of corruption for
skimming money from a land development deal in Tongluo (銅鑼), Miaoli County, and
for abusing his official powers as a legislator to pressure officials at the
National Science Council.
It follows that the legal definition of public duties and powers for legislators
include monitoring the activities and budgets of the economics ministry, which
has influence over who is given senior positions within CSC and CHC, and on
major policy decisions. Since the ruling in this case was based on the legal
definition of public duties and powers, all of Lin’s actions should have been
understood in terms of this definition.
Indeed, was it precisely because of Lin’s public duties and powers that he could
do his “business” with Ti Yung Co owner Chen Chi-hsiang (陳啟祥), from whom he
demanded bribes? Incredibly, the collegiate bench seemed to overlook Lin’s
legislatorial duties and powers, blaming his behavior instead on his “thuggish
tendencies.”
Next, the collegiate bench acknowledged that after Lin had received the bribe he
“asked” the economics ministry to pass on a memo and told Minister of Economic
Affairs Shih Yen-shiang (施顏祥) when the two met in the legislature to “pay heed”
to it. However, the judges interpreted Shih’s failure to follow up on this as
suggesting Lin was merely carrying out services to his constituents, and not
carrying out his public duties and powers as a legislator.
If he was not acting as a legislator, why would he approach the minister about
it at the legislature, or pass on the memo?
More importantly, whatever a public official chooses to do after receiving a
bribe, whether the party doing the bribing was satisfied with the result or not,
and whether the outcome was deemed successful, really has no bearing on the
action of the official in the discharge of their public duties and powers. It
certainly should not influence the conclusion as to whether corruption had taken
place.
In the Chen Che-nan corruption case, the court did not even consider whether he
had intervened having accepted the bribe, or even whether his intervention had
been successful. Indeed, Liang Po-hsun (梁柏薰), who gave the bribe, only spoke out
because it was unsuccessful. Nevertheless, the judges, having found that Chen’s
actions irrefutably constituted corruption, did not then deny that they were
performed in the discharge of his public duties and powers.
Whether Shih actively complied with Lin’s requests only touches upon the issue
of whether Shih himself has a legal case to answer and it has nothing to do with
the assessment of whether Lin accepted bribes. Perhaps someone can explain how
Chen Che-nan could be found guilty of corruption for accepting a bribe and
failing to follow through, when Lin did what he was bribed to do and yet got let
off the hook.
Finally, looking back over the major corruption cases of the past few years, it
does seem the courts have become a kind of creative workshop churning out new
interpretations, the sheer inventiveness of each being more astounding than the
last.
There was the “reservoir theory” espoused by President Ma Ying-jeou’s (馬英九)
lawyers when he was charged with corruption over the use of discretionary funds
before he came to power; then there was the concept of “presumed actual
influence” that put Chen Shui-bian behind bars in the Longtan case; and now we
have this new invention in the Lin case, the improved version of the notion of
actual influence.
What ingenious little piece of inventiveness will the courts come up with next?
The suspense is killing me.
Lin Yu-hsiung is a professor in the College of Law at National Taiwan
University.
Translated by Paul Cooper
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