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Lin Yi-shih case in
need of review
By Jerry Cheng 鄭文龍
On April 30, the Taipei District Court announced its verdict in the trial of
former legislator and Executive Yuan secretary-general Lin Yi-shih (林益世) on
corruption charges.
Lin was found to have accepted a payment of NT$63 million (US$2.13 million) from
a contractor, and to have put pressure on the contractor to pay him another
NT$83 million, but the court found him not guilty of corruption.
The ruling has caused an outcry. What is even more absurd is that one of the
trial judges later attributed this verdict to inconsistent interpretations of
public officials’ “legally defined powers” and “actual influence.”
Lin’s position as Executive Yuan secretary-general made him the chief adviser to
the premier, so that he was legally empowered to assist the premier in
coordinating, directing and overseeing departments and personnel under the
authority of the Cabinet.
The powers of the Executive Yuan secretary-general derive from those of the
premier, while the legal definition of the premier’s authority is that he or she
is the nation’s top executive leader.
Furthermore, according to Judicial Yuan interpretations 613 and 627, apart from
the military, diplomatic and related powers vested in the president by the
Constitution, all other powers are in the hands of the premier. The Executive
Yuan secretary-general therefore holds the executive powers of assisting the
premier in his functions of coordination, direction and oversight, and his
powers can be said to be higher than those of anyone except for the premier and
vice premier.
In exercising these powers, Lin was in a position to wield a degree of authority
over the personnel and policies of the China Steel Corp, since it is a
state-owned company.
Specifically, Lin, as Executive Yuan secretary-general, was endowed by law with
a certain level of legally defined powers.
However, the Taipei District Court’s verdict is based on the erroneous view that
Lin had no legally defined powers, so it is hardly surprising that the judgment
has provoked a strong backlash.
Having made this error in its verdict, the judges have not only failed to
recognize their own mistake, but have gone even further astray by trying to tie
it up with the Supreme Court’s ruling about actual influence.
Records show that 400 verdicts handed down by the Supreme Court over the past 50
years have all been based on legally defined powers and never on actual
influence.
That is because basing them on the notion of actual influence would clearly
violate the principle of legality, which holds that a person may only be
punished for an act that is defined by law as a punishable offense.
Notably, in 2006 the legislature approved an amendment to the Criminal Code that
defined public officials who could be accused of taking bribes more precisely as
those having legally defined powers. This should leave no room for judges to
misrepresent the definition as having to do with actual influence.
However, President Ma Ying-jeou (馬英九) was dissatisfied when former president
Chen Shui-bian (陳水扁) was found not guilty in his first-instance trial on
corruption charges related to the second round of financial reforms.
Ma summoned the president and vice president of the court for a meeting, two
days after which the Supreme Court changed direction and, departing from the
interpretation that had stood unchanged for the previous 50 years, concocted the
notion of “actual influence.”
This altered definition was clearly tailor-made to fit Chen. As a result of this
unlawful and unconstitutional distortion of the law, Chen was convicted and
sentenced to a lengthy prison term.
Considering that this interpretation clearly violates the principle of legality,
it would not normally be used by anyone in the legal profession.
Lin’s case is in need of a thorough review. It should be clarified that, since
Lin was vested with legally defined powers, there is no need to drag in the
highly dubious notion of “actual influence.”
The Supreme Court should cease misinterpreting and misusing the notion of actual
influence, and instead return to the interpretation that had previously stood
unchanged for 50 years and that complies with the 2006 amendment to the Criminal
Code.
Furthermore, the Supreme Court should get back in line with judicial normality
by righting the injustice done to Chen.
Jerry Cheng is a lawyer.
Translated by Julian Clegg
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