Tuesday, January 8, 2013

Neither Prosecute the Innocent, Nor Abet the Guilty
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
January 8, 2012


Summary: A dozen or so professors are suspected of falsely reporting expenses. Prosecutors have indicted them on charges of corruption. National Science Council President Chu Ching-yi, Academia Sinica President Wong Chi-huey, and Education Minister Jiang Wei-ning have issued a joint declaration, expressing concern and making an appeal. The two sides appear to be diametrically opposed and at a standoff.

Full Text below:

A dozen or so professors are suspected of falsely reporting expenses. Prosecutors have indicted them on charges of corruption. National Science Council President Chu Ching-yi, Academia Sinica President Wong Chi-huey, and Education Minister Jiang Wei-ning have issued a joint declaration, expressing concern and making an appeal. The two sides appear to be diametrically opposed and at a standoff.

But we see no fundamental difference between the two sides. Zhu, Weng, and Chiang have long advocated cracking down on corruption while avoiding malicious prosecution. The Ministry of Justice says that it is making distinctions between minor and major offenses. It says it is letting smaller fish go while going after corruption. The public has a very different perception. As they see it, the three elders from academia are merely covering up their own mistakes. As they see it, the prosecutors are merely persecuting the innocent. These impressions however, do not necessarily reflect the truth or the whole picture.

The three elders from academia began by comparing two categories of false reporting, which they termed Category A and Category B. Under Category A, "A professor use false invoices and pockets the money, or else uses the money to purchase personal items having nothing to do with research. Examples include designer bags and refrigerators for their homes. Such cases must be turned over to the authorities, who should exercise no leniency."

Under Category B, "A professor uses false invoices to purchase other kinds of research equipment. One example would be using an invoice for three toner cartridges to purchase a computer screen. Not one dime went into private pockets. The Corruption Offences Ordinance is not aimed at cases such as this."

The three elders from academia said "Different categories of false invoices call for different attitudes."

Actually the prosecution took this into account when leveling their indictments. They apparently subscribe to the same policy. If public funds have not entered private pockets, depending on the seriousness of the offense, they may choose not to prosecute. They may charge them with forgery, a Category B offense. Other categories, such as purchasing one thing while reporting another, will also be dealt with leniently. But if the accused colluded with the vendor to pad the invoice and pocketed the difference, that will be treated harshly. That would be a Category C offense. Abusing the power of one's office to embezzle and pocket public funds is an even worse form of corruption. That would be a Category A offense. The vast majority of offenses are Category D offenses. These the prosecution chose to overlook from the very outset. It either chose not to prosecute, or dropped the cases midstream. The prosecution does have a "different cases, different attitudes" policy.

The dispute between the three elders from academia and the Ministry of Justice is merely over the wording of "Neither prosecute the innocent, nor abet the guilty." Each side has its own job description. Each side has its own perspective. The three elders from academia may stress "not prosecuting the innocent." The Ministry of Justice may stress "not abetting the guilty." Each side has its own take on the matter. This is hardly surprising.

But the controversy involves an unshakeable core principle. Under existing laws, a public university professor is a civil servant. If he pockets public funds, he can be prosecuted for corruption. That is why the three elders from academia agree that offending public university professors would fall under Category A offenders. They "should unquestionably be handed over to the authorities for prosecution according to the letter of the law. They must not be treated leniently." This is what the Ministry of Justice refers to as "no room for ambiguity." Both parties agree about the core principle. Therefore the controversy over right and wrong is already half-solved.

What concerns the public is that the prosecution may have difficulty successfully prosecuting Category B and Category D offenses as embezzlement because they involve a grey area. The three elders from academia may have difficulty interceding on behalf of those accused of Category A and Category C offenses. .

Many individuals have been indicted for these offenses. But each case is an individual case. These are not indictments of educators, academicians, and professors, per se.

Prosecuting illegal activities has nothing to with the educators as such. Nor is it right to associate Category A suspects with "distinguished researchers." After all, even a distinguished president was involved in corruption. He was prosecuted according to the law. How can professors be exempt?

There already appears to be a consensus. At first academicians said the offenses were Category B and Category D offenses. But later on they said they were Category A offenses involving embezzlement. Some even said they were Category C offenses involving collusion. One reason for this guilt by association, is that suspects often get away scot free due to dumb luck. Another reason is a systemic lack of accountability. The prosecution is merely restoring long term accountability to the system. This could be seen as a belated attempt to restore accountability to academia as a whole.

The three elders from academia have addressed Category B and Category D offenses. They do not want the public thinking they are condoning Category A and Category C offenses. By contrast, if the prosecution cites Category B and Category D offenses when prosecuting corruption, it will generate chaos. It will undermine its credibility. Therefore the three elders from academia, the prosecution, and the public, must reach a clear consensus, namely, "different cases, different attitudes."

We believe the differences between the four types of offenses must be made clear. This will not "undermine morale in academia." It will clear the air. It will exonerate academicians. It will enhance their dignity and honor.

毋枉毋縱:三長與法部的共識 
【聯合報╱社論】
2013.01.08 02:52 am

十多名教授涉嫌不實報銷案,被檢方以貪汙等罪名起訴;國科會主委朱敬一、中研院院長翁啟惠及教育部長蔣偉寧為此聯名聲明,表達憂慮與呼籲。雙方看似針鋒相對,壁壘分明。

然而,迄至目前,我們卻看不出雙方有何根本差異。朱翁蔣三長亦主張法辦貪汙,但不可造成冤錯;法務部則稱已經區別輕重,網開一面,但貪汙仍應法辦。然而,如今形成的社會印象卻是:三長只知護短,檢方則濫訴無辜,這些恐皆未必是如今事態的真相與全貌。

三長的公開聲明,開宗明義即舉出「兩種類型」的比較,茲稱之為甲類型與乙類型。甲類型:「如果教授以假發票報領經費拿進口袋,或是用此經費購買與研究無關的私人物品(如名牌包、家用電冰箱等),我們認為絕對要依法究辦,不應寬貸。」

乙類型:「但是,假如以假發票報帳購買另一項研究器材(例如用三個碳粉匣的發票實購一個電腦螢幕),也沒有一毛錢進私人口袋,那麼畢竟不是貪汙治罪條例所該適用的對象。」

準此,三長表示:「假發票案的類型不同,我們對不同案件的態度也不同。」

其實,檢方在過濾相關案件時,似乎亦持同一立場:倘公款未入私囊,視情節輕重,或不起訴,或訴以偽造文書(乙類型);另對類如買A報B的情節,亦從輕處理;但若與廠商勾串以低價高報,而將「預放款」(回扣)留為私用者,即不寬貸(此可謂為丙類型);至於利用職務詐取公款納入私囊就是貪汙,沒有模糊空間(甲類型);另外,還有居絕對多數的「丁類型」,早經檢方過濾掉了,以不起訴或請回結案。倘若此即檢方的辦案準則,豈不也是「案件類型不同,我們對不同案件的態度也不同」?

因此,就我們看來,三長及法部之間若有爭執,亦僅在「毋枉毋縱」四字而已。只是,各自站在職司不同的立場,三長可能較重「毋枉」,但法部可能較重「毋縱」。此皆人情事理之自然,不足為怪。

這場爭論,有一個不可移變的中心準則,即是在現行法律下,倘將公立大學教授視為公務職位,則其人若將公款納入私囊,即可能被以貪汙罪訴究;因此,三長也認為在公立大學教授的法律責任中,亦有「甲類型」存在,「絕對要依法究辦,不應寬貸」。此或即是法務部所稱的「沒有模糊空間」。只要雙方皆站在這個中心準則上,這場辯論的核心是非已可解決大半。

國人關切的是:檢方不宜將灰色地帶的「乙類型」、「丁類型」,辦成貪汙罪;三長亦不宜為「甲類型」、「丙類型」說項。

接下來可以一談的是,此事雖牽涉人數不少,但畢竟仍屬個案,不宜將之與「教育界/學術界/教授界」的全稱命題相提並論;畢竟,糾辦不法,不能視為與全體「教育界」為難。再者,亦不宜將涉案者的案情(如果是甲類型),與其是否為「研究傑出卓越者」混為一談;畢竟,即使是「傑出卓越的總統」,若涉貪汙,亦當法辦,教授又豈能免責?

然而,若說事態發展迄今,已有「制度共業」的意味,亦非全無道理。一開始,校園漸漸出現了便宜行事的「乙類型」、「丁類型」,然後就慢慢演變出監守自盜的「甲類型」,甚至惡化成教商勾結的「丙類型」。此種「制度共業」的形成,一方面是因涉案者的僥倖心理,另一方面亦因問責規範的失能;因而,這次檢方的動作,其實只是還原了原本早已應當運行的問責體制,可視為挽救「校園共業」的一個遲到的契機。

如今,三長要為「乙類型」、「丁類型」發言,亦不願社會誤解其是在為「甲類型」或「丙類型」撐腰。相對而言,倘若檢方真將「乙類型」、「丁類型」辦了貪汙案,即是亂了分寸,自失立場。所以,三長及檢方,與全體國人,已可在本案找到一個明確的共識,那就是:「案件的類型不同,我們對案件的態度也不同。」

我們相信,若能把四種類型區別清楚,非但不會「重挫學術界士氣」,反更將激濁揚清,清新校園,提升學術界的尊嚴與榮譽。

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